1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.75 of 2008 IN SUMMARY SUIT NO.3617 OF 2007 Building Diagnostics & Solutions ..Plaintiff Vs. Benhur Co-operative Housing Society Ltd. ..Defendant Mr. S. Shamim for the Plaintiff Mr. Vinay Bhate with Ms. Reshmarani J. Nathani for the Defendants. Coram: Smt. Roshan Dalvi, J Date : 12th June, 2009 P.C. 1. This suit is filed as a summary suit upon the written contract between the parties for carrying out certain repair works to the building of the Defendants society, Exhibit C to the Plaint, dated 21.01.2005. Under the written contract the terms and conditions of the tender were set out. As per the said terms, time for payment of the final bill of the Plaintiff was to be made within 15 days of the consultant’s certification. The consultant has certified the final bill of the Plaintiff as also the earlier bills. The earlier bills certified under the interim certificates have been paid. The final bill under the final certificate has remained unpaid. The final 2 certificate is for Rs.12,30,441/-. 2. Under the final certificate the retention amount of Rs.1,63,532.79 is deducted. Under the terms of the contract between the parties 50% of the retention amount under the final bill is payable to the Plaintiffs and 50% is to be retained for the defect liability period. 3. In the final bill the TDS amount of Rs.1,43,500.02 is also deducted. The Plaintiff has claimed recovery of the amount, under the final certificate, 50% retention amount payable to the Plaintiff and the TDS already deducted which is also payable to the Plaintiff with interest @ 18% p.a. 4. The amount claimed under the final certificate, the retention amounts and the TDS amounts are payable as per the written contract and as per the statutory liability of the Defendants respectively. The amount of interest is claimed in addition thereto. 5. The Defendants have not shown how the amount certified under the final certificate is not payable by them. 6. It is contended on behalf of the Defendants that the tender document relating to the repairs and restoration of their building interealia has an Arbitration clause and hence this suit must be referred to Arbitration. Arbitration clause is as follows: 3 All disputes or differences whatsoever which shall at any time i.e. During the execution of the contract or maintenance thereof till total completion of the contract between the parties hereto concerning the works shall be effected by an Arbitration. The Arbitrators will be appointed by the consultants on receipt of application from the aggrieved party. The consultants shall have power to appoint such an Arbitrator whose appointment shall be binding upon both contractor and society and the costs of arbitrators shall be done by both the parties i.e contractor and society. The Arbitration shall be held in Mumbai. 7. The Arbitration clause does not refer to or apply to the recovery of amount agreed to be paid under the written contract, as per the final certificate issued by the consultant what is agreed to be referred to Arbitration is only the disputes and differences during the execution of the contract or its maintenance till the completion of the contract concerning the works. The Defendants have not raised any disputes or differences with regard to the execution of the contract by the Plaintiff, the maintenance of the building by the Plaintiff or relating to the works done by the Plaintiff. Had those disputes been raised the consultants would have considered those disputes before certifying the final bill. The Defendants have not shown any disputes or differences. The Defendants have only defaulted in payment of agreed and certified amount. Such default is not a dispute or difference. The 4 dispute is to be with regard to the work done. The work to be done is for repair and restoration of the building. The difference, if any, would be with regard to the extent of payment. Neither of these is shown by the Defendants. Mere default without any valid defence is not dispute or difference which is referable to Arbitration under the specific clause relating to Arbitration in the tender document of the Defendants. 8. The Plaintiff’s Advocate rightly argued that the Consultant has to certify the bills. Arbitrator is to be appointed by the consultant. He, therefore, argued that there would be anomaly if the consultant has to appoint an Arbitrator who would consider the extent of the bill to be certified, after he has himself certified it. It is, therefore, seen that the liability for the payment of the amount certified by the Arbitrator becomes conclusive upon such certificate. That is not the matter referable to Arbitration upon the default of the Defendants simplicitor. 9. There is no defence to the Summons for Judgment. On the Defendants depositing in court Rs.13 lacs within 10 weeks, the Defendants shall have leave to defend the suit. If the amount is deposited the Defendants shall be entitled to file their written statement within 30 days of the deposit. (Smt. Roshan Dalvi, J)