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 Case Type | Spl.C.S. |
 Filing Number | 1075/2021 |
 Registration Number | 133/2021 |
 Filing Date | 01-03-2021 |
 Registration Date | 02-03-2021 |
 First Hearing Date | 06th March 2021 |
 Decision Date | 30th April 2021 |
 Case Status | Case Disposed |
 Court Number and Judge | 5-3Rd Joint Civil Judge Senior Division Thane; |
 Nature of Disposal | Contested--Referred To Arbitration; |
Petitioner Shivanath Baban Patil, ;
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Petitioner AdvocateD D Waghmare;
Respondent NameVijaya Prabhakar Vaiti, Bharati Pradeep Madhavi, Janardhan Chango Patil, Sandeep Raghunath Madhavi, Show more..
Respondent AdvocateNarendra Datar, Deepak Chitnis, S.V.Sali;
Order not found.
| Order Date | 30-04-2021  |
| 1 Special Civil Suit No. 133/2021 CNR: MHTH020010722021 Order below Exh. 23 MHTH020010722021 Order below Exh. 23 in Special Civil Suit No. 133/2021 (CNR: MHTH020010722021) Shivanath Baban Patil Vs. Vijaya Prabhakar Vaiti & Ors. This is an application under Section 8 of Arbitration and Conciliation Act, 1996 moved by defendant No. 7 praying for referring the matter to arbitrator as agreed between the parties in registered agreement dated 29/12/2012 and supplementary agreement dated 19/02/2015. 2) Plaintiff has strongly objected the application on various grounds mentioned in the application among which the plaintiff presses that clause 34 of the suit agreement although refers to arbitration but does not specifies the matter to be referred to arbitrator. Plaintiff further claims that he seeks partition through the suit. The subject matter of the suit cannot be divided between the parties to the arbitration agreement. Hence, the application deserves to be rejected. Moreover, the supplementary agreement was a new agreement by which new rights and liabilities are created. 2 Special Civil Suit No. 133/2021 CNR: MHTH020010722021 Order below Exh. 23 For relying their claim, defendant No. 7 has filed following case laws. [1] Sundaram Finance Limited and Another Vs. T. Thankam reported in (2015) 14 Supreme Court Cases 444. [2] P. Anand Gajapathi Raju and Others Vs. P.V.G. Raju (Dead) and Others reported in (2000) 4 Supreme Court Cases 539. [3] M/s. VBHC Mumbai Value Homes Pvt. Ltd. Vs. Shri. Laxman Bhoir & Ors. reported in 2015(6) ALL MR 155. [4] Chloro Controls India Private Limited Vs. Severn Trent Water Purification Inc. and others reported in (2013) 1 Supreme Court Cases 641. [5] Mutheim Pipecoatings GmbH Vs. Welspun Fintrade Limited & Anr. reported in 2014(3) ALL MR 838. In the same way, plaintiff has relied upon following ratios [1] Sukanya Holdings Pvt. Ltd. Vs. Jayesh H. Pandya and Another reported in AIR 2003 Supreme Court 2252. [2] Atul Singh and Ors. Vs. Sunil Kumar Singh and Ors. reported in AIR 2008 Supreme Court 1016. [3] Ramdas Dwarkadas Vs. Orient Pictures reported in AIR 1942 Bombay High Court 332. 3) Perused the application and say filed on it. Heard both the counsels at length. As per section 8(1) and (2) of Arbitration Act, there are certain perrequisites to attract the said provision. In this regards, in order to attract the said provision, there are certain conditions 3 Special Civil Suit No. 133/2021 CNR: MHTH020010722021 Order below Exh. 23 which are required to be satisfied under the above section in order to apply the said provision in the present case. In this regards, conditions laid down in para 26 of the Hon'ble Supreme Court in case of Mrs. Hema Khattar & Anr. Vs. Shiv Khera reported in 2017(4) ALL MR 980 (S.C.). The conditions are as under. [1] there must be an arbitration agreement. [2] a party to the agreement brings an action in the court against the other party [3] the subject matter of the action is the same as subject matter of the arbitration agreement [4] the other party moves the court for referring the parties to arbitration before it submits his first statement of substance of dispute. 4) Thus, after perusal of the above conditions, it is required to be satisfied in order to attract section 8 of Arbitration and Conciliation Act. Although the plaintiff has come up with the prayer that he seeks partition of the suit property but the section prayer mentions that the suit agreement dated 29/12/2012, power of attorney dated 09/12/2012 and supplementary agreement dated 19/02/2015 be declared as illegal, null and void. Perusal and plain reading of the plaint shows that all the reliefs claimed by plaintiff are around the suit agreement dated 29/12/2012. The suit cannot be decided if the agreement dated 29/12/2012 and 19/02/2015 are kept aside. Now, clause 34 of suit agreement dated 29/12/2012 mentions that 4 Special Civil Suit No. 133/2021 CNR: MHTH020010722021 Order below Exh. 23 '' हह करहर व तयहयनन वयहपन, अरर यहबहबत पहहलल पक व ददसरल पक यहयचयहत कहहन वहद हनरहरण झहलयहस तयहचह हनवहडह उभयपक यहयचल सयरतननल हनयदक लवहदह रहरर त करणलचह आहल व अशह लवहदहचह हनणरय उभयपक यहयस बयधनकहरक रहहहल.'' 5) Hence, it is clear from the wordings of the agreement clause 34 that parties mutually agreed to refer the dispute to arbitrator. So far as, supplementary agreement dated 19/02/2015 is concerned, its title itself shows that it is supplementary to agreement dated 29/12/2012. So, here we can conclude that the arbitration agreement does exist. Now, the parties to the suit i.e. plaintiff and defendant Nos. 1 to 6 are the relatives having their share as claimed by them in the suit property. On perusal of the plaint and agreement dated 29/12/2012, it can be seen that parties are either same or they have succeeded their share from persons who were party to agreement dated 29/12/2012 and 19/02/2015. The dispute is with respect to suit property is the same property as mentioned in the arbitration agreement. Further, although the plaintiff has come up before the Court that his share in the suit property by way of partition but has substantially prayed that the suit agreement dated 29/12/2012 and supplementary agreement dated 19/02/2015 be declared as null and void. Perusal of the plaint shows that as the dispute arose between the parties in the suit agreement dated 29/12/2012 and 19/02/2015, the plaintiff has moved the present suit with the prayer of partition and further declared that the suit agreement dated 29/12/2012 and supplementary agreement dated 5 Special Civil Suit No. 133/2021 CNR: MHTH020010722021 Order below Exh. 23 19/02/2015 be declared as null and void. So, it can be held that the subject matter of the action is same as the subject matter of the arbitration. Defendant is yet to move the first statement of defence although he has only replied to the status quo application but such reply cannot be considered as first statement of substance of dispute. In view of the above discussion, I hold that the present case has fulfilled all the four conditions of section 8 of Arbitration Act. In view of above discussion, the application is allowed. Hence, I pass the following order. [1] Application is allowed. [2] Plaint be returned to plaintiff for institution before proper forum. [3] Proceeding is closed accordingly. sd/ Thane (Smt. T. M. Ahmed) Date : 30/04/2021 2nd Jt. Civil Judge S.D., Thane |
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The Petitioner in case Shivanath Baban Patil vs M/S. Kyraa Infra Project Pvt. Ltd. is Shivanath Baban Patil.
The Respondent in case Shivanath Baban Patil vs M/S. Kyraa Infra Project Pvt. Ltd. is M/S. Kyraa Infra Project Pvt. Ltd. and 8 more.
The case against M/S. Kyraa Infra Project Pvt. Ltd.was filed on 01-03-2021 by Shivanath Baban Patil.
The status of case Shivanath Baban Patil against M/S. Kyraa Infra Project Pvt. Ltd. is Case Disposed.