1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.152 OF 2008 IN SUMMARY SUIT NO.60 OF 2007 M/s. Y.K.MISTRY & CO. ..PLAINTIFFS VS. M/s. OLD HANUMAN LANE CHS LTD & ORS. ..DEFENDANTS Mr. M.K.Jain for the Plaintiff Mr.N.N.Bhadrashete for the Defendants No.1 to 3 CORAM: SMT ROSHAN DALVI, J. DATED: 26 th February, 2009 P.C.: 1. The Plaintiffs' suit is for recovering all the amounts due and payable under the second R.A. Bill of the Plaintiffs certified by the Architect as per the written contract between the parties dated 03.02.2005. Under the said contract, in case of any dispute the decision of the architect would be binding on both the parties. Under that clause the Plaintiffs' claim the amount certified by the Architect. The clause relates to the decision of the Architect upon dispute between the parties. 2 This clause does not mention the agreement between the parties to make payment as certified by the Architect. Though, therefore, payments as certified by the architect would be required to be made, there is no written contract between the parties to that end. 2. Exhibit C to the Plaint shows first R.A. Bill. Exhibit E to the plaint is a letter enclosing the R.A. Bill. Though the enclosure is not annexed to the plaint, the original document is produced. 3. There is no written agreement showing the payment to be made without demur as per the certificate of the architect. 4. The Defendants contend that there is a dispute with regard to the work done. It is his contention that there has been leakage every monsoon and another contractor has been appointed to re-do the work. That is indeed the dispute between the parties. The Architect, therefore, has to decide that dispute. That decision of the Architect would be binding on both the parties. Neither of the parties has referred the dispute to the Arbitrator for decision. Certification of the bill on 13.08.2005 cannot, therefore, ipso- facto result in payment or deposit under the certificate. The Defendants shall have unconditional leave to defend the suit. The 3 Defendant shall file their written statement within 8 weeks. Both the parties may consider and refer their dispute to Arbitration of the Architect, Mr. Ram Krishna Kejriwal. (Smt. Roshan Dalvi, J)