Who is the Petitioner in case Raj N Raj vs Vasudev Dham Co Opertive Housing Society Ltd?

The Petitioner in case Raj N Raj vs Vasudev Dham Co Opertive Housing Society Ltd is Raj N Raj.

Who is the Respondent in case Raj N Raj vs Vasudev Dham Co Opertive Housing Society Ltd?

The Respondent in case Raj N Raj vs Vasudev Dham Co Opertive Housing Society Ltd is Vasudev Dham Co Opertive Housing Society Ltd.

When did Raj N Raj file case against Vasudev Dham Co Opertive Housing Society Ltd?

The case against Vasudev Dham Co Opertive Housing Society Ltdwas filed on 08-01-2021 by Raj N Raj.

What is the status of case Raj N Raj vs Vasudev Dham Co Opertive Housing Society Ltd?

The status of case Raj N Raj against Vasudev Dham Co Opertive Housing Society Ltd is Case Disposed.

Raj N Raj vs Vasudev Dh

Case Details

Case Type	Civil M.A.
Filing Number	68/2021
Registration Number	12/2021
Filing Date	08-01-2021
Registration Date	11-01-2021

First Hearing Date	11th January 2021
Decision Date	01st March 2021
Case Status	Case Disposed
Court Number and Judge	1-Principal District And Sessions Judge Thane;
Nature of Disposal	Contested--Dismissed / Rejected After Full Trial / Hearing;

Petitioners & Respondents

Petitioner

Raj N Raj, ;

Petitioner Advocate

H.R.Sharma;

Respondent Name

Vasudev Dham Co Opertive Housing Society Ltd;

Respondent Advocate

M/S Rks Associates;

Order Details

Order Date

13-01-2021

.. 1 .. Civil. M.A.No.12/2021 (Ord Exh.5) CNR No.MHTH010002932021 MHTH010002932021 Civil M.A. No.12/2021 CNR No. MHTH010002932021 M/S. RajNRaj …. Applicant. Versus Vasudev Dham CoOperative Housing Society Ltd. …. Respondent. : Order Below Exh.5 : 1] Perused application. Heard Ld. Advocate for the applicant. He drew attention of the Court to the orders passed by Civil Judge, S.D., Thane dated 02/03/2020 and 24/12/2020 in Spl.Civil Suit No.84/2020 filed by applicant against respondent. 2] Perusal of certified copies of order passed below Exh.12 and Exh.13 shows that an order of statusquo was granted by Civil Judge, S.D. vide Exh.10 and the said order of statusquo is extended for the period of 20 days from 24/12/2020. It is thus clear that the said order is in force till date for more than 7 to 8 months. No prejudice will cause to respondent if such order is continued till appearance of respondent in this proceeding. This will avoid any further complications and multiplication of proceeding. Hence prima facie case is made out for grant of ex parte relief. Hence order : .. 2 .. Civil. M.A.No.12/2021 (Ord Exh.5) CNR No.MHTH010002932021 O R D E R 1) Both parties are directed to maintain statusquo in respect of subject matter of the application till returnable date. 2) Issue notice to the respondent as to why said order of statusquo shall not be confirmed. 3) Notice is made returnable on 05/02/2021. Date 13/01/2021. (R.M.Joshi) Thane. Principal District Judge, Thane. 2021-01-16T17:02:29+0530 Ravindra Madhusudan Joshi

Final Order Judgement

Order Date

01-03-2021

(1) Civil M.A.No.12/2021 Judgment CNR No.MHTH010002932021 MHTH010002932021 Received on : 08/01/2021 Registered on : 08/01/2021 Decided on : 01/03/2021 Duration : Y. M. D. 00 01 29 IN THE COURT OF PRINCIPAL DISTRICT JUDGE, THANE, AT : THANE ( Presided over by Shri R.M.Joshi ) Civil M.A.No.12/2021. CNR No.MHTH010002932021 Exh.17 M/s. RajNRaj Proprietary concern of Mr. Rajkumar Vyas. Aged about 56 years. Occupation Business. Having address at Shop No.5, Suvias Apartment, Narayan Nagar, Bhayandar (East) Thane – 401 101. .... Applicant. Versus Vasudev Dham Cooperative Housing Society Ltd. Through Chairman/Secretary of society A coop Society registered Under the Maharashtra Society Act 1960 being its Regd. No. TNA/[TNA] HSG/TC/17214/20052006 Dated 24/02/2006. Having address at 21, Salasar Brijbhoomi Complex, near Fly Over Bridge, 150 Road, Bhayandar (West) Thane401 101. …. Respondent. (2) Civil M.A.No.12/2021 Judgment CNR No.MHTH010002932021 Application under section 9 of The Arbitration And Conciliation Act, 1996. Shri H.R.Sharma, learned Advocate for Applicant. Shri Rakesh K.Singh, learned Advocate for Respondent. …......... J U D G M E N T (Delivered on this 1st day of March, 2021 ) 1] This application is filed under section 9 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Act” for sake of brevity) for seeking interim measures against opponents. 2] Applicant is a contractor undertaking civil works and has accepted the work of carrying out repairs to the building of the respondent society. Work order dated 07/05/2019 was issued mentioning terms of the contract between the parties. It is alleged by the applicant that when first bill was issued on 17/06/2019 for Rs.2,03,154/ society gave the said bill to the consultant i.e. M/s. Versatile Consultant Engineers and the said consultant reduced the amount of bill to Rs.1,69,878.60 ps. Similarly second, third and fourth bill issued by the applicant were also reduced, while making payment. Applicant has claimed that balance amount of Rs.3,84,661.69 ps. is due and payable by respondent to the applicant. It is further claimed that machine and equipments of the applicant such as hammer, cutter, grinder and bamboos used for scaffolding are lying in the society compound and the members of the society are not permitting applicant to take back the said machines and articles. It is also alleged that committee members of the society tried to attack applicant and abused him and hence N.C. was lodged on 25/01/2020. Applicant has also stated about civil suit filed against the respondent bearing R.C.S.No.84/2020 before (3) Civil M.A. No.12/2021. Judgment. CNR.No.MHTH010002932021 C.J.S.D., Thane and orders passed therein. Applicant issued notice dated 21/12/2020 showing readiness to appoint arbitrator mutually but respondent did not reply to the same. On these contentions application for interim measures is filed. 3] Respondent society appeared in this proceeding and filed reply at Exh.11. It is admitted by the respondent that work of repairing of the building was entrusted to the applicant. However, it is alleged that applicant has not performed the said work satisfactorily. It is further claimed that respondent has complied with the contractual terms by virtue of work order and alleged against applicant for failure on his part to fulfill his obligations under the agreement. Respondent has claimed that they are not liable to pay any amount to the applicant and on the contrary, society is entitled to recover money from applicant. Respondent has made allegations against applicant about misbehaviour in the premises of the society and has lodged complaint to the local police station in this regard. It is contended by the respondent that bamboos used for scaffolding are lying in the society premises as the same were not removed by the applicant. Respondent has shown absence of knowledge about any material in the premises of the society belonging to the applicant. 4] Perused pleading and carefully considered documents on record. Heard Ld. Advocates for both sides. From rival contentions following points arise for my determination to which I have recorded my findings as under for the reasons given below : (4) Civil M.A.No.12/2021 Judgment CNR No.MHTH010002932021 Sr. No. Points Findings 1) Whether the applicant has made out prima facie case for grant of interim measures as prayed ? .. In the negative 2) What order ? .. As per final order. Submissions 5] Ld. Advocate for the applicant submitted that admittedly the repair work was assigned by the respondent to the applicant and the work order issued to that effect confirms the agreement between the parties, which contains arbitration clause. It is further submitted that respondent has not paid entire bills for the work performed by the applicant and hence there is a breach of agreement on the part of the society. He further submitted that R.C.S.No.84/2020 came to be filed by the applicant against the society wherein injunction was granted, which continued for the period of about one year and on objection raised by the society under section 8 of the Act, suit was disposed of. It is argued that respondent without any authority has withheld payments as well as articles belonging to the applicant. It is pointed out that notice of arbitration is issued but there is no response of the respondent to the same. 6] Ld. Advocate for respondent submitted that respondent is not liable to make payment to the applicant till the work to the extent of Rs. 5 lakhs was completed. The respondent, however, by following procedure for payment in terms of work order has made payments and subsequently it is revealed that the work done by the (5) Civil M.A. No.12/2021. Judgment. CNR.No.MHTH010002932021 applicant was of inferior quality and hence applicant is liable to pay damages to the respondent. It is submitted that applicant has pressurized respondent and hence complaint was lodged to the police against applicant. With regard to the notice of Arbitration, it is submitted that the said notice is not in accordance with the Arbitration agreement which provides for appointment of arbitrator by the consultant and not by parties. R E A S O N S As to point No.1 : 7] Admittedly relationship between the parties is governed by work order dated 07/05/2019. The said work order provides for procedure for billing and after submission of the bill it was to be certified by the consultant. The consultant was required to ascertain actual work done and completed including the quality of the work. It is not in dispute that applicant placed four bills to the respondent and to the extent said bills were approved by the consultant, amounts were paid to the applicant. Thus the respondent appears to have not committed any breach of the agreement in so far as payment of bills is concerned. 8] With regard to the dispute about the balance amount claimed by the applicant as well as inferior quality of the work as alleged by the respondent, said issues are required to be adjudicated upon by the Arbitral Tribunal. This Court cannot record any finding thereon. Nor at this stage quantification of claim of both sides can be done. (6) Civil M.A.No.12/2021 Judgment CNR No.MHTH010002932021 9] It is not in dispute that work order contains arbitration clause and the appointment of the sole Arbitrator is at the discretion of the consultant. Parties to the agreement therefore are required to approach to the consultant for appointment of the Arbitral Tribunal. Perusal of the notice dated 21/12/2020 shows that applicant himself appointed Arbitrator without approaching to the consultant and prima facie the said appointment of the Arbitrator is not in accordance with the terms of the agreement. The respondent therefore was not bound to respond to such notice and which cannot be termed as inaction on the part of respondent to go for Arbitration. 10] Applicant has claimed that machines and bamboos are lying in the premises of the society. However, there is nothing on record to show that respondents are not permitting removal of the same. Complaint lodged by the applicant on 25/01/2020 does not state about such allegation. On the other hand, respondent has fairly come out with the case that bamboos are lying in the premises of the society which are not removed by the applicant himself. From the evidence on record it cannot be held that respondent refused to permit applicant to remove bamboos from the premises of the society and there is illegal withholding of the material belonging to applicant by respondent. 11] Applicant's has money claim and if applicant succeeds in establishing his claim before Arbitral Tribunal then he can recover the same from the respondent society. There is no chance of avoidance of payment or satisfaction of award from the society consisting of members having their residential premises in the (7) Civil M.A. No.12/2021. Judgment. CNR.No.MHTH010002932021 building. In the circumstances no case is made out for securing the subject matter of arbitral proceeding, by way of grant of interim measures. 12] In order to succeed in seeking any interim measure applicant has to prima facie establish breach of agreement on the part of respondent. Applicant however has failed to show any breach having been committed by the society. Moreover, the relief sought by the applicant is quantifiable in terms of money and hence applicant is not entitled for injunction as claimed. Similarly, grant of injunction of restraining the society from carrying out repairs will cause irreparable loss to the members of the society, which cannot be compensated in terms of money. The balance of convenience therefore clearly is in favour of respondent. Hence order : ORDER 1) Application is dismissed with cost. 2) Dictated and pronounced in open Court. Date : 01/03/2021. ( R.M.Joshi ) Thane. Principal District Judge, Thane. 2021-03-04T11:40:24+0530 Ravindra Madhusudan Joshi

Case Details