1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO.210 OF 2008 IN SUMMARY SUIT NO.1310 OF 2008 TECHNOBUILD ENGINEERS & CONTRACTORS ..PLAINTIFFS VS. NUTAN MADHUBAN APARTMENTS CO-OP HSG SOC LTD. ..DEFENDANTS Mr. Kunal Cheema for the Plaintiffs Mr. Amit Sheth for the Defendants CORAM: Smt. ROSHAN DALVI, J. DATED : 9th APRIL, 2009 P.C.: 1. This suit is filed for recovery of the liquidated amount under the written Agreement dated 15.05.2005 between the parties. The Agreement is entered into between the Plaintiff as the Engineers and contractors and the Defendant as society whose premises was to be repaired by the Plaintiff. 2. Under clause 11 of the written Agreement parties agreed that payment will be made by the society (Defendant) as 2 per physical progress of the work jointly measured by the parties and upon bills submitted by the contractors (Plaintiff). 10% of that amount was to be retained from the interim bill towards security deposit without interest. The bills were to be paid by the society to the contractors within 10 days after they were certified by the society consultants. 3. The Plaintiff submitted bills from time to time. 10 bills have been paid as certified by the society's consultants. Bill No.11 is partly paid and bill No.12 has not been paid. The bill No.11 was made out for Rs.3,46,000/- net amount of Rs.3,32,105/- is certified as payable. Bill No.12 was made out for Rs.2,60,000/- net amount of Rs.2,49,559/- was certified as payable. This was after 10% of the retention amount was retained. This excluded the VAT which was payable. The net amount which is certified is the liquidated amount payable within 10 days of the certification under clause (11) of the written Agreement between the parties. 4. The Plaintiff's legal notice claiming that amount has remained unanswered. 3 5. The Defendant has raised certain disputes with regard to the defects in construction / repair work. The Defendant rely upon clause (24) of the written Agreement dated 15.05.2005. In that clause the Plaintiff was to carry out the work under the supervision of the society's consultants. The parties agreed to refer all the disputes and differences that arise between them to the Arbitration of the Society' s consultant. He is the same consultant who was to certify the amount payable under the bill. After certifying the amounts payable under the bill he is stated to have expired. The Defendant has raised disputes and differences. It contends that there are several defects. The Arbitrator decided by the party has expired. However, under the Arbitration clause the dispute has to be referred to Arbitration. The parties have to follow process required under the Arbitration & Conciliation Act, 1996 (the said act), in case of death of the Arbitrator. 6. In this Summons for Judgment the liquidated amount payable was to be seen. The substantial defence, if any, raised by the Defendant was to be considered. Since the Arbitration clause governs the party under the admittedly executed contract dated 15.05.2005 and the Defendant 4 has raised a plea requiring reference of the dispute to Arbitration. An interim order u/s 9(i)(b) of the said act alone is required to be passed. That is with regard to the interim measures etc., to be passed by the court. Since the Defendant's application for reference to Arbitration is considered u/s 8 of the said Act, the Plaintiff' s Application for interim measures u/s 9 of the said Act, is also required to be considered at the same time. 7. Hence the following order: The suit is referred to Arbitration. Both the Advocates state that they shall decide upon the Arbitrator since Arbitrator is not fixed now and since otherwise the liquidated amounts certified by the society consultant is claimed in this suit as a summary suit. That amount would be required to be secured u/s 9(i)(b) of the said Act. The Defendant shall deposit Rs.5 lacs which is part of the liquidated amount excluding the retention amount with the Prothonotary & Senior Master of this court, pending the Arbitration proceedings. The prothonotary & Senior Master shall invest the said amount in a nationalised bank initially for a period of 37 months. The Defendant shall deposit the said amount within 8 weeks from today. The suit as well as summons for judgment 5 disposed off accordingly. (Smt. Roshan Dalvi, J)