UNIWORLD GARDEN APARTMENT Vs. UNITECH REALTY PRIVATE LTD

JUDGEMENT

(1.) Plaintiff has filed the present suit under Order XXXVII inter alia seeking a recovery of a sum of Rs.?17,76,64,952/- along with interest @18% per annum from the defendant on the basis of unequivocal and written admissions on part of the defendant about its liability to hand over the Interest Bearing Maintenance Security (in short 'IBMS') to the plaintiff association once the association is formed. The said IBMS had been collected by the defendant from the individual apartment owners and was to be handed over when the association was formed to take over the maintenance of the apartment complex. It is the case of the plaintiff that though the plaintiff was formed in the year 2006, the plaintiff was prevented from taking over of the complex due to failure of the defendant to complete the complex in all respects in time and thereafter as well despite repeated requests to hand over the possession after the complex was equipped with all basic and essential facilities.

(2.) The plaintiff inter alia relies upon the admissions of the defendant vide its email dated 24th January, 2009 enclosing the IBMS amount @8.25% as on 31st December, 2008; defendant's letter dated 5th April, 2011 responding to the plaintiff's letter dated 18th March, 2011 admitting the liability to hand over IBMS amount; handing over letter dated 20th August, 2013 enclosing the IBMS amount with interest @8.25% till 31st August, 2013; balance sheet of the financial year 2012-13 and 2013-2014 and affidavit of defendant dated 11th March, 2015 filed in Company Petition No.513/2004. Reliance is placed on the decisions reported as AIR 1999 Bom 340 BOI Finance Limited vs. Padma Alloy Casting Private Limited & Ors., 2001 (1) Mh.L.J. 687 R. Kumar & Co. vs. Chemicals Unlimited AIR 2003 and Bom 168 Sun N Sand Limited vs. V.V. Kumar.

(3.) Responding to the plea of defendant that there is an arbitration clause in the Agreement to Sell it is contended that the plea ought to have been taken as part and parcel of the leave to defend application and not by way of separate application under Section 8 of the Arbitration Act. It is claimed that the plaintiff association is a society registered under the Societies' Registration Act , 1860 thus a separate legal entity, independent of its individual apartment owners, hence any arbitration agreement entered between the members would not be binding on the plaintiff association. Reliance is placed on the decisions reported as AIR 1946 Bom 516 Satyavart Sidhantalankar & Ors. vs. Arya Samaj, Bombay, AIR 1958 AP 773 Pamulapati Buchi Naidu College Committee vs. Govt. of A.P. and Ors. and AIR 1970 Pat 163 K.C. Thomas vs. R.L.Gadeock & Anr.