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2005 DIGILAW 1725 (RAJ)

Ashok Mining Company v. The Hindustan Zinc Ltd.

2005-07-07

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the petitioner as well as learned Counsel for the respondents. 2. Brief facts of the case are that the non-petitioner No. 1-applicant before the Court below submitted a petition under Section 33 of the Arbitration Act, 1940 and prayed that contract between the parties, petitioner and non-petitioner has come to an end and all the obligations under the contract have already been discharged, therefore, no arbitrator could have been appointed by the petitioner-non-applicant, but the petitioner No. 1 has appointed non-petitioner No. 2 as arbitrator and he is proceeding with the arbitration proceedings. The non-petitioner No.1, therefore, by his petition under Section 33 of the Act of 1940 prayed that it may be declared that the arbitration agreement has come to an end and in the alternative in case Court comes to the conclusion that arbitration agreement survives then the applicant non-petitioner No. 1 may be permitted to appoint arbitrator. 3. During the pendency of the petition under Section 33 of the Arbitration Act, the non-petitioner No. 1 applicant submitted an application seeking permission to produce the evidence. That application of the non-petitioner No. 1 was opposed by the petitioner-non-applicant, upon which the learned District Judge, Udaipur by impugned order dated 30.04.1997 allowed the oral evidence of the parties. Hence, this writ petition by the non-applicant-petitioner to challenge the order of the trial Court dated 30.04.1997. 4. According to learned Counsel for the petitioner the petition under Section 33 is required to be decided only on the basis of the affidavits of the parties. Learned Counsel for the petitioner relied upon the Judgment of the Honble Supreme Court delivered in the case of Damodar Valley Corporation vs. K.K. Kar reported in AIR 1974 SC 158 in support of his plea that all questions are required to be decided by the arbitrator. 5. Learned Counsel for the respondents submitted that the order passed by the civil Court is well within jurisdiction and in fact, the order is a discretionary order and the Court has exercised its discretion after application of mind and looking to the facts of the case, the Court found it necessary to give opportunity to the parties to produce evidence so that Court may decide the issue about the existence of the arbitration agreement. 6. I considered the submissions of learned Counsel for the parties. 6. I considered the submissions of learned Counsel for the parties. So far as law laid down by the Honble Apex Court is concerned, there is no dispute. What can be decided by the arbitrator is not the point involved in this matter because of the simple reason that the application has been filed by the non-petitioner No. 1 is under Section 33 for getting the decision of the civil Court on the existence of valid arbitral agreement empowering the arbitrator to proceed and decide the alleged dispute. The civil Court has not decided the application under Section 33 of the Act of 1940, but has decided only application by which the non-petitioner prayed that he may be permitted to produce evidence in support of his petition. On this limited issue only, the arguments were advanced and Court ordered only that the parties shall be free to produce more evidence. 7. The proviso appended to Section 33 clearly provides that where the Court deems it just and expedient, it may set down the application for hearing of other evidence also, despite the fact that in Section 33 itself it has been given out that the Court shall decide the question on affidavits. Therefore, a harmonious construction of proviso can be recognition of the power of the Court to hear on other evidence also, which means the other documentary evidences, which may be produced by the parties. The order dated 30.04.1997 nowhere says that the Court has permitted oral evidence of the parties. How the affidavits are to be dealt with and are required to be proved are to be decided by the civil Court and Court even has not passed order either allowing or refusing cross-examination on affidavits. Therefore, the order dated 30.04.1997 is well within the jurisdiction and power under Section 33 of the Arbitration Act, 1940. I do not find any force in the submissions of learned Counsel for the petitioner that the civil Court has no jurisdiction to take evidence as the arguments is just contrary to Section 33, which is a specific provision empowering the Court to decide the question, which can be raised under Section 33 of the Act of 1940 after evidence. 8. In view of the above, I do not find any merit in the writ petition and the same is hereby dismissed. 9. 8. In view of the above, I do not find any merit in the writ petition and the same is hereby dismissed. 9. A petition has also been filed by the non-petitioner No. 1 with a title cross objection, and the same is annexed in this writ petition as that has not been registered separately. Learned Counsel for the non-petitioner No. 1 submits that in view of the order passed by this Honble Court, he wants to withdraw that cross-objection. Permission is allowed. 10. The cross-objection is dismissed as withdrawn without deciding whether cross-objection are maintainable or not.