W.P. 3185/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3185/2010 Godavari Marathwada Irrigation Development Corporation, Aurangabad through its Executive Engineer, Upper Penganga Project, Division No. 8, Nanded. ...Petitioner. Versus 1 Nirmal Construction Company Nanded, through It’s partner. 2 Bhaurao w/o Narayanrao Nirmal, Age : Major, R/o Ganesh nagar, Nanded. 3 Govindrao s/o Dattatraya Mirashe, Age : Major, Occu. Business, R/o Telang Borgaon, Tq. Hadgaon District Nanded. 4 Dattarao s/o Ramrao Solanke, Age : Major, Occu. Business, R/o As above. ...Respondents. Mr. M.S. Karad h/f Mr. S.S.Thombre, Advocate for the petitioner. Mr. A.S. Bajaj, Advocate for respondent No.1(i). CORAM : A.V. NIRGUDE, J. DATED : 7th April, 2011. ORAL ORDER: 1. This writ petition is filed against the order dated 02/12/2009 passed by 2nd Jt. Civil Judge, (Senior Division), Nanded on Exh. 72 in Special Civil Suit No. 295/1997. The petitioner is the plaintiff before the lower Court. It is a suit W.P. 3185/2010 2 for recovery of amount. Part of the suit claim arose from an agreement between the parties in which the petitioner / plaintiff advanced certain amount as machinery advance to the respondent / defendant. The respondent / defendant in turn pledged certain articles with the petitioner / plaintiff. An agreement in writing in respect of this loan was executed between the parties and admittedly there is a clause of arbitration mentioned in the agreement. In 1995, the petitioner / plaintiff asserted that the amount given as machinery advance to the defendant had been defaulted and they sent notices demanding the amount. The defendant did not respond to notices sent in 1995-1996 neither he referred the case to the arbitrator. Soon thereafter in 1997, the suit was brought. The respondents / defendants filed their written statement as well as a counter claim and rather belatedly they moved application Exh. 72 in 2009 seeking direction of the Court to refer the dispute to the arbitrator in view of the arbitration clause referred to above. The petitioner / plaintiff did not file any affidavit / say to oppose the application. The learned judge on 21/02/2009 allowed the application and referred the dispute to the arbitrator. This order is being challenged in this writ petition. 2 I am in agreement with the learned advocate appearing for the petitioner to hold that the reasons mentioned in the impugned order for allowing the application are incorrect. But I am not inclined to substantially disturb the impugned order. The reason is, the fact that despite the application being made so belatedly and in spite of the provisions of section 8 of the Arbitration and Conciliation Act, 1996, the petitioner / plaintiff did not raise any objection to the application Exh. 72. When such objection is not raised, the Court would be free W.P. 3185/2010 3 to allow the application. The Supreme Court in the case of P. Anand Gajapathi Raju and others Vs. P.V.G. Raju (Dead) and others reported in 2000 Arb. W.L.J. 377 observed a under. “But if the party, who wants the matter to be referred to arbitration applies to the Court after submission of his statement and the party who has brought the action does not object, as is the case before us, there is no bar on the Court referring the parties to arbitration”. 3 For this reason, the application deserved to be allowed and not for the reasons mentioned in the impugned order. 4 On perusal of the plaint, it becomes some what clear that the petitioner / plaintiff’s claim consists of several claims arising from different agreement etc.. The plaint is not annexed with a “statement of claim” and therefore, it is not clear as to what amount is sought to be recovered towards the defaulted machinery advance and material advance. Vide two different agreements, the defendants were given machinery advance as well as material advance. On both occasions, the parties executed written agreement in which arbitration clause is mentioned. So, this part of the suit claim is required to be referred to the arbitrator. Since the plaint is not clear as to how much amount is claimed towards defaulted machinery advance and material advance, I am required to direct the petitioner / plaintiff to amend and add to it the “statement of claim”. The claim/s arising from the machinery advance and material advance shall stand referred to the arbitrator named in the agreement. Rest of the claim/s shall continue before the Court. In view of this, the petition stands disposed of. [A.V. NIRGUDE, J.] ts k/2011/April7/wp3185.10/ok W.P. 3185/2010 4