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Madhya Pradesh High Court · body

1962 DIGILAW 214 (MP)

Dattatraya v. Amirkhan

1962-11-21

S.B.Sen

body1962
ORDER 1. This civil revision arises out of an application of section 20 Arbitration Act. The applicant in the High Court have to construct a house at Mohalla Balwantganj Khargone. He entered into an agreement with non-applicant to construct the same. The terms were settled. A dispute arose regarding the construction as well as the payment. The contractor Amirkhan, the non-applicant in this case made an application under S. 20 Arbitration Act alleging that there was an agreement on 18-5-56 and the original was in possession of the applicant. He prayed that Dattatraya be ordered to file the agreement to get the dispute between the parties settled by the arbitrators appointed in the deed. 2. The allegations are that after the work started as per plan Dattatraya made changes in the plan and increased the work and the area over which the building was to constructed. This caused delay in construction and additional expenses to the contractor. Amirkhan alleged that it was settled in the agreement that if any dispute arise in the terms and conditions of the agreement the matter would be settled by certain named arbitrators. 3. The applicant opposed the application under S. 20 of the Arbitration Act but his contentions have been rejected by the Courts below, who ultimately came to the conclusions that there was an agreement in writing and that the dispute was included in the agreement. The Court therefore ordered the defendant-applicant to file the agreement which was in his possession. Dattatrya has now come up in revision. 4. The applicant's main contention is that there has been no written agreement for referring the matter to the arbitrators and therefore the Court had no jurisdiction to make an order to file an agreement under S. 20 of the Arbitration Act. He also contended that unless the defendant admits that there is an agreement and such a writing is produced before the Court, the Court will have no jurisdiction to pass the order. 5. This contention cannot be accepted. He also contended that unless the defendant admits that there is an agreement and such a writing is produced before the Court, the Court will have no jurisdiction to pass the order. 5. This contention cannot be accepted. S. 20 of the arbitration Act requires the following circumstances for its application (1) there should be an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement (2) the difference must arise to which the agreement applies (3) the Court to which the application has to be made must have jurisdiction in the matter to which the agreement relates. 6. When all the above conditions are satisfied, the applicant may make a prayer that the arbitration agreement be filed in the Court. Arbitration agreement has been defined in the Act as follows :- "It means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." 7. A careful reading of the above provisions would clearly show that it was no where laid down that the defendant against whom an application is made should admit that there was an arbitration agreement. If the existence of arbitration agreement is denied it can certainly to proved before the Court. It is one thing to prove the contents of the agreement by secondary evidence and it is another thing to prove an existence of the agreement. In the instant case what the Court has decided after the denial by the defendant applicant is that there was an arbitration agreement. 8. The learned counsel for the applicant contends that in his application the plaintiff himself has stated that what he was filing with the application was not an agreement but a draft of the original which was with the defendant. It is true that the original has been alleged with the defendant, but that does not matter. It does not mean that there was no agreement. It means that the agreement existed the terms and conditions of which were also given in the draft. 9. The learned counsel for the applicant relies on a decision of the Allahabad High Court reported in Makhanlal Vs. Abhairam, AIR 1935 All. 386. In support of his contention. I do not think the Allahabad case is of any help to him. 9. The learned counsel for the applicant relies on a decision of the Allahabad High Court reported in Makhanlal Vs. Abhairam, AIR 1935 All. 386. In support of his contention. I do not think the Allahabad case is of any help to him. In that case their lordships have observed :- "Para 17 contemplates that the agreement should be in writing and should be before the Court, so that it may be ordered to be filed in order that an arbitrator may be appointed in accordance with its provisions and he may be called upon to act upon the agreement. It is not necessary that the document should be in the form of a written contract signed by the parties so as to be an instrument or document; but is certainly necessary that there should be some writing which should embody the whole of the agreement." 10. From the above observations it is clear what is necessary is that there should be a writing from which the terms and conditions must be clearly ascertained. The draft agreement was complete by itself. There was no change in the terms according to the finding of the Court. It was the original which was with the defendant and all the terms that were agreed upon were incorporated in writing in the document which has been filed in the Court. The Allahabad case on which the applicant has relied has clearly said that it is not necessary that there should be a completed document. According to them the terms of the agreement should not be a matter of controversy between the parties. The document which has been filed by the non-applicant plaintiff has not been denied that it was not written. 11. The applicant also relied on the rulings reported in ILR 30 Cal. 218, 25 BLR 437 and 26 CWN 246. All these ruling only say that there should be agreement in writing so that the terms and conditions can be ascertained. 12. In Jugalkishore Vs. Mrs. Goolbai AIR 1955 SC 312, Their lordships have clearly expressed the view:- "It is settled law that to constitute an arbitration agreement in writing, it is not necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established." 13. Mrs. Goolbai AIR 1955 SC 312, Their lordships have clearly expressed the view:- "It is settled law that to constitute an arbitration agreement in writing, it is not necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established." 13. The findings of the Courts below are clear in this connection. The Court has jurisdiction to find out the existence of an agreement and whether that was in writing. When these two findings are there, the Court has jurisdiction to ask the defendant to file the arbitration agreement. This finding cannot be challenged in revision under S. 115 C.P. Code. 14. The other question that was raised is that the arbitration agreement did not include the dispute that existed between the parties. This is purely a question of fact. According to the Courts below the arbitration agreement includes the dispute between the parties The Court had jurisdiction to decide whether a particular dispute is within the four corners of an arbitration agreement and it has decided according,. No revision therefore lies. 15. The result is the revision petition is dismissed with costs, Counsel fee according to scale, if certified.