1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.242 OF 2009 IN SUMMARY SUIT NO.1274 OF 2009 Zerxes F. Lashkari .. Plaintiff Vs. S.D.Fine Chem Ltd. .. Defendants Mr.Ketan Parekh i/b M/s.K.R.Parekh and Co. for the plaintiff Mr.Kirit Mody i/b M/s.Shroff and Co. for the defendants CORAM : S.C.Dharmadhikari, J. DATE : October 12, 2010 P.C. : 1. This is a summary suit for recovery of sum of Rs.2,47,950/- with further interest @ 18% p.a. 2. It is stated that under an agreement, copy of which is annexed as Annexure 'A' to the plaint, the defendants engaged the plaintiffs as a consultant. The services were rendered to the satisfaction of the defendants and bills raised were paid from time to time. In respect of last bill, TDS was deducted (Tax Deducted at Source), certified copy of which is annexed to the plaint at Annexure 'B' would demonstrate the same. Therefore, the liability is 2 admitted as there is no dispute or denial of the services rendered. 3. In reply, it is contended that there is an arbitration agreement between the parties as evidenced by clause XII of the agreement at page 9. In the light of this arbitration agreement, the instant suit is not maintainable. Further, the claim is time barred and secondly, the amount which is stated to be covered by the last installment is not payable because the commissioning of the project is not complete. Reliance is placed on the e-mails and correspondence in that behalf. There are denials of this statement in the affidavit of rejoinder of the plaintiff. 4. However, the plaintiff does not dispute that there is an arbitration agreement between the parties. 5. The plaintiff does not state that he is unwilling to go for arbitration or that the ingredients of section 8 of the Arbitration and Conciliation Act, 1996 are not satisfied. In such circumstances, no order can be passed on this summons for judgment. 6. The parties have themselves decided to settle the dispute and / or differences arising out of or in relation to the contract by arbitration. The difficulties that are placed by the plaintiffs and the conditions attached by him do not carry his case any further. If para nos.4 and 5 of the rejoinder affidavit are perused, it is clear that the plaintiff is agreeable and willing to 3 go for arbitration. In such circumstances, summons for judgment is disposed of. Plaintiff cannot seek any relief much less any deposit of amount in court once the requirements of section 8 of the Arbitration and Conciliation Act, 1996 are satisfied. 7. At this stage both the sides are agreeable that the plaintiffs claim as set out in the plaint and in the affidavit in rejoinder be referred to arbitration by the Forum decided by the parties in terms of clause XII of the contract / agreement at Exhibit 'A' to the plaint. The Bombay Chambers of Commerce and Industry shall act upon the authenticated copy of this order and appoint an Arbitrator in terms thereof to adjudicate all the disputes between the parties. Suit and Summons for Judgment is disposed of without expressing any opinion on the merits of the plaintiffs' claim and keeping open contentions of both the sides. ( S.C.Dharmadhikari, J. )