1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.145 OF 2008 IN SUMMARY SUIT NO.760 OF 2008 WITH SUMMARY SUIT NO.760 OF 2008 Rakshanda Khan .... Plaintiff V/s. M/s.Afnan Arts, through its Proprietor Mr.Naveed A. Antulay .... Defendant Mr.V.R.Walavalkar with Mr.V.B.Amin i/by M/s.B.Amin & Co., for the plaintiff. Mr.Munir Merchant, for the defendant. CORAM : D.G.KARNIK, J. DATED : 31ST MARCH, 2009. P.C. 1. This summons for judgment is taken out by the plaintiff in suit No.760 of 2008, for recovery of money due under the contract dated 16-12-2006 (Exh.A to the plaint). 2. According to the plaintiff, a written agreement was executed between the defendant and the plaintiff, under which the plaintiff agreed to act as an Artist in a Serial titled as “Kuch Apne Kuch Paraye” (for short “a Serial”), which was to be produced or co-produced by the defendant. The defendant agreed to pay to the plaintiff a sum of Rs.27,500/- for shooting 2 per day in which the plaintiff rendered her services as an Artist. 3. According to the plaintiff, she rendered services by performance as an Artist as required by the defendant. After giving credit for some part payments received, a sum of Rs.14,26,406/- is due and payable to the plaintiff towards the principal sum. The plaintiff has also claimed interest. However, at the hearing of the Summons for Judgment, the learned counsel for the plaintiff gave up the claim of interest and restricted the claim to the principal sum. 4. The defendant did not file any application for leave to defend the suit within 10 days of the service of the Summons for Judgment, nor has he filed any affidavit-in-reply. However, subsequently the defendant has filed an application, purporting to be under Section 8 of the Arbitration Act, contending that there is an arbitration agreement and therefore, the suit is not maintainable. At the hearing, the learned counsel for the defendant submitted that since prima facie the suit is not maintainable, the defendant is entitled to unconditional leave to defend even if the Court does not stay the suit. No other ground was raised on merits. 5. Since only ground of absence of jurisdiction of the Court to entertain and try the suit in view of the arbitration clause is raised with a prayer for stay of the suit, it would be appropriate to refer to the arbitration 3 clause which is contained in Para No.14 of the agreement : - 14.Jurisdiction “The agreement shall be governed by and construed in accordance with the laws of India. All disputes and difference concerning or arising out of the Agreement shall proceed as provided for by the Arbitration and Conciliation Act, 1996 and the rules made there under. Courts in Mumbai alone will have Jurisdiction in matters arising out of the Agreement”. 6. The learned counsel for the plaintiff submitted that only if there is a subsisting dispute concerning and arising out of the agreement, the same can be referred to Arbitration. However, if there is no dispute between the parties, there is no question of reference of it to arbitration. He submitted that the amount has been demanded by letters and Advocates notice. The liability to pay was not disputed and no reply was sent. Since the amount was admitted and there was no denial of the liability to pay the amount, there was no dispute pending between the parties for being referred to the arbitration. In support of the contention, the learned counsel for the plaintiff referred to and relied upon a decision of the Supreme Court in Union of India V/s. Birla Cotton Spinning and Weaving Mills Limited, AIR 1967 SC 688, and a decision of the Division Bench of the Kerala High Court in K.P.Ramakrishnan V/s. New India Assurance Co. Ltd., Calicut, AIR 1982 Kerala 181. 4 7. In Union of India (supra), the Supreme Court has held that for enforcement of an arbitration clause, there must exist dispute. In the absence of the dispute between the parties, there can be no reference. The Supreme Court repelled the contention of the appellant therein that mere refusal by it to pay the amount was sufficient to raise the dispute in connection with the contract. 8. In K.P.Ramakrishnan (supra) the Division Bench of the Kerala High Court has referred to and followed an earlier decision of this Court in Dawoodbhai V/s. Abdulkader, AIR 1931 Bom. 164, wherein it was held that a mere failure to pay was not necessarily a difference nor the fact that a party could not or would not pay did not in itself amount to a dispute unless the party who chose not to pay raised a point of controversy regarding the basis of payment or the time or manner of payment. 9. In the present case, there is no dispute between the parties that the plaintiff has performed as an artist in the serial produced or co- produced by the defendant. It is not in dispute that the defendant had agreed to pay to the plaintiff a sum of Rs.27,500/- per day and the total principal amount due to the plaintiff for her performance in the serial produced or co-produced by the defendant comes to Rs.14,26,406/-. There is also not dispute that plaintiff had written letters demanding the payment and had issued notice demanding the payment to the defendant 5 on 09-03-2007. The defendant sent no reply and did not dispute the liability to pay. The plaintiff again sent a notice to the defendant through a lawyer on 07-12-2007 demanding the payment. The defendant did not reply this notice also. But thereafter, defendant wrote a letter to the co- producer demanding certain payments from them on the ground that the plaintiff and other artists were demanding the payment and the co-producer had agreed to make the payment. This is a dispute between the defendant and co-producer and not a dispute between the plaintiff and the defendant. So far as the plaintiff is concerned, there is no dispute between the parties regarding the payment due to her by the defendant. In the circumstances, the arbitration clause in the agreement does not apply and there is no need to stay the suit. 10. No defence has been raised on merits. No arguments were advanced about the merits of the claim, except that the claim for interest could not be tried as a Summary Suit. As stated earlier, the plaintiff has given up the claim for interest. In view of what has been stated hereinabove, the Summons for Judgment deserves to be allowed and is hereby allowed. 11. The suit of the plaintiff is decreed as follows : - (a) The defendant shall pay to the plaintiff a sum of Rs.14,26,406/-. 6 (b) The defendant shall also be liable to pay interest @ 12% p.a., from this date till payment. (c) The defendant shall pay costs to the plaintiff. ( D.G.KARNIK, J. )