Dismissed

Padmashri Vithalrao Vikhe Patil Foundation v. M/S Rusi Khambatta Associates Chartered Architect

Bombay HC23 Dec 2014CA/9617/2014

Case brief

AI extract

What is this about?

The Division Bench allowed a written petition challenging an order disposing of a copyright suit. The court held the arbitration clause was wide enough to cover the dispute and distinguished a Supreme Court precedent regarding company winding-up. Consequently, the legal application was dismissed as unmeritorious without a delay notice.

What the court decided

AI extract

Padmashri Vithalrao Vikhe Patil Foundation Vs M/S Rusi Khambatta… — Arbitration | Bombay HC (2014)

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2 sr. no..odt

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{1}

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CIVIL APPLICATION NO. 9617 OF 2014

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IN LPAST/14300/2011 WITH CA/9618/2014 IN LPAST/14300/2011

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PADMASHRI VITHALRAO VIKHE PATIL FOUNDATION VERSUS

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M/S RUSI KHAMBATTA ASSOCIATES CHARTERED ARCHITECT

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Advocate for Applicant : Mr. Vinayak D. Hon, Senior Advocate.

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CORAM : B.P. DHARMADHIKARI & A.M. BADAR, JJ. DATE : 23rd DECEMBER, 2014.

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PER COURT:

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1] Heard. Learned Senior Advocate with Advocate Anjankar, invited our attention to orders passed on 5.2.2013, and accordingly, has attempted to demonstrate merits in LPA. It appears that the Division Bench on 5.12.2013, was not inclined to issue notice on prayer for condonation of delay only because the application is filed and wanted to satisfy itself about the merits of the matter.

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2] Learned Single Judge of this Court, has delivered the impugned judgment on 11^th April, 2011 and allowed W.P No. 3331 of 2007 filed by respondents. The LPA questions that judgment and there is a delay of about 35 days.

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3] With the assistance of learned Senior Advocate, we have attempted to find out merits in LPA. Argument of learned Senior Advocate is, Clause No.9 in the agreement between the appellant and the respondent, is not in relation to copy right disputes and suit filed by present appellant, vide R.C.S. No. 1 of 2005, therefore, could not have been subjected to arbitration clause. He submits that respondent accepted payment of consideration

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{2}

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2 sr. no..odt

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and, therefore, property in the building map/drawings prepared by respondent Architect passed on to appellant. Appellant wanted to complete the structure in time bound manner, as it was meant for a Medical College and a team of Medical Counsel of India was to arrive for its inspection. Respondent Architect did not cooperate for expeditious construction and was creating obstacles. Thus, dispute had no bearing on agreement between the parties. He has relied upon judgment of the Apex Court, in the case of “Haryana Telecom Ltd. Vs. Sterlite Industries (India) Ltd., reported at 1999(3) Scrutiny Committee 861.

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4] He also submits that the learned District Judge has correctly appreciated the controversy. Respondent/defendant has also while filing written statement, in para.11, mentioned that it had reserved right to file civil suit for its dues and also for damages.

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5] Existence of contract between the parties is not in dispute. Clause No.9, which contained the arbitration clause therein, reads as under :-

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“9.00 Arbitration : All difference and disputes arising between the client and the architect on any matter connected with the agreement or in regard to the interpretation of the content thereof shall be referred to arbitrators.

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9.1 Two arbitrators will be nominated, one arbitrator is to be nominated by the Management and other arbitrator to be nominated by the architect with consultation of management.

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9.2 The meetings of the arbitrators are held in the premises of the Ahmednagar Medical College.

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9.3 The provisions of Arbitration and Conciliation Act, 1996 are applicable or the decision of arbitration proceeding.

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2 sr. no..odt

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{3}

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9.4 For the drawings and decision the work should not be held up. The work shall be taken up stage wise and complete as per the instructions of client.

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9.5 All legal proceedings pertaining to this agreement is subject to jurisdiction of Ahmednagar Courts or the High Court of Bombay Bench at Aurangabad.”

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6] The clause expressly encompasses all differences and disputes. Thus, not only use of word “all” must be taken note of, but the later phreasography therein, which speak of “any matter” and “connected with the agreement” as also words, “in relation to interpretation of the content thereof” show a very wide field, which parties wanted that clause to occupy. Hence, every difference and dispute between the parties arising out of the agreement and on any matter connected with it, is to be subjected to arbitration.

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7] The judgment of the Apex Court (supra) considers the application under Section 8 of the Arbitration and Conciliation Act, 1996, moved in a winding up petition before the High Court. Winding up petition is regulated by the provisions of Companies Act and the list of secured and unsecured creditors is required to be settled for the purposes of proceeding further in that matter. Such secured and unsecured creditors can not be subjected to arbitration agreement which is essentially only between the parties thereto. It is in this background, that Honourable Apex Court, has found that application under Section 8 is unsustainable and observed that High Court was right in rejecting it.

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8] Thus, it is procedure in winding up proceedings which necessitated rejection of application under Section 8 of the Arbitration and Conciliation Act, 1996. Contention that, because those proceedings were

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{4} 2 sr. no..odt

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under Companies Act, the Honourable Apex Court did not interfere and hence, as these proceedings are under Copy Right Act, same analogy should apply, is, therefore, misconceived. In copy right proceedings, there is no question of involvement of any third party and as such, reliance upon above mentioned judgment of the Honourable Apex Court, is erroneous.

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9] We find that the learned Single Judge has correctly elaborated the scope of Clause No.9 mentioned (supra). LPA is, therefore, without merit. In this situation, there is no need to issue any notice on prayer for condonation of delay. Civil application No. 9617 of 2014, as also, LAP Stamp Number 14300 of 2011, are disposed of. Pending civil application, if any, are also disposed of.

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[A.M. BADAR] [B.P. DHARMADHIKARI] JUDGE JUDGE.

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grt/-

Padmashri Vithalrao Vikhe Patil Foundation v. M/S Rusi Khambatta Associates Chartered Architect

Case brief

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What the court decided

Padmashri Vithalrao Vikhe Patil Foundation v. M/S Rusi Khambatta Associates Chartered Architect

Case brief

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