IN THE COURT OF THE CIVIL JUDGE SENIOR DIVISION,

MARGAO, GOA.

MISC. APPLICATION No. OF 2005

IN

SPECIAL CIVIL SUIT No. 96 OF 2005/ II

GE Capital Services India. … Plaintiff

VERSUS

Sunset Resorts Limited. … Defendant

PLAINTIFF'S REPLY TO THE DEFENDANT'S

APPLICATION UNDER SECTION 8 OF THE ARBITRATION
& CONCILIATION ACT, 1996.

MAY IT PLEASE YOUR HONOUR :

The Plaintiff above named most respectfully states and

submits as under :

1. Plaintiff craves leave to take the following Preliminary

Objections to the maintainability of the Application which are taken
without prejudice to one another.

a) The Application under Section 8 of the Arbitration and

Conciliation Act 1996 (the "Act") is not maintainable because
there is no arbitration agreement between the parties.

b) It is submitted that it is clear this Application is wholly

frivolous and has been filed with a clear intention of delaying
the proceedings. It should therefore be dismissed in limine with
costs

c) The Plaintiff has brought this instant suit for sale of mortgaged
property, which is a statutory remedy under Section 67 of the
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Transfer of Property Act 1882 ("TPA") read with Order 34 of

the Code of Civil Procedure 1908 ("CPC"). This remedy can
only be granted by a civil court, and therefore also the
Defendant's Application is not maintainable

d) An application under Section 8 of the Act can be filed only

before a judicial authority which undisputedly has otherwise
jurisdiction to decide the matter.

In as much as the Defendants have in their separate

Application filed under Order 7 Rule 11 taken an objection to
the jurisdiction of this Hon’ble Court, the present Application
under Section 8 is not maintainable, in any event before the
question of jurisdiction is decided.

2. With reference to paragraph 1 of the Application, Plaintiff

submits that the contents of this paragraph are a matter of record
insofar as receipt of notice and summons by the Defendant are
concerned. The Application under Section 8 of the Act is not
maintainable.

3. With reference to paragraph 2 of the Application, Plaintiff

submits that the Loan Agreement dated 1st August, 2003 (EXHIBIT B
to the Plaint) speaks for itself. All allegations and insinuations of the
Defendant are denied.

4. With reference to paragraph 3 of the application, Plaintiff states

that the contents of this paragraph are denied. There is no arbitration
agreement between the Plaintiff and the Defendant. The subject matter
of the instant suit is a mortgage of property and there is no arbitration
agreement applicable to the said subject matter.

5. With reference to paragraph 4 of the Application, Plaintiff

submits that the Loan Agreement, the Supplementary Agreement, the
Memorandum of Deposit of Title Deeds and other documents speak
for themselves. The Defendant's admission that it guaranteed the debts
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of Morepen and created a mortgage by deposit of title deeds is noted.

All other allegations and insinuations of the Defendant are denied.

6. With reference to paragraph 5 of the Application, Plaintiff

submits that the Loan Agreement speaks for itself. There is no
arbitration agreement between the Plaintiff and the Defendant. There
has been no compliance with Section 8 of the Act. All allegations and
insinuations of the Defendant are denied.

In the circumstances as aforestated, the Application

deserves to be dismissed with exemplary costs.

Margao – Goa. YOGESH V. NADKARNI

Date : 18/8/2005. (Advocate for the Plaintiff)