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2008 DIGILAW 185 (CAL)

Accounts Officer v. R. Sen and Co

2008-02-14

BISWANATH SOMADDER

body2008
Judgment (1.) HEARD the learned advocate appearing on behalf of the petitioner. (2.) THIS is an application under Article 227 of the Constitution of India directed against an order, being order No. 16 dated 6th September, 2006 passed by the learned Judge, VII Bench, City Civil Court at Calcutta in Title suit No. 1327 of 2004. (3.) BY the order impugned, the learned Court below proceeded to reject the application of the defendant, being the petitioner herein, filed under section 8 of the Arbitration and Conciliation Act, 1996, read with section 7b (1) of the Indian Telegraph Act, 1885. (4.) AFTER considering the submissions made by the learned advocate and upon perusing the instant application and the order impugned, I find that the learned Court below has rejected the said application primarily on two grounds. Firstly, the application of the defendant under section 8 of the Arbitration and Conciliation Act, 1996 was not maintainable in view of non-compliance of the mandatory provisions of sub-section (2) of section 8 of the Arbitration and conciliation Act, 1996. Secondly, the disputes raised by the plaintiff in the plaint did not come within the ambit of section 7b (1) of the Indian Telegraph act, 1885, since the said section postulates that if any dispute concerning any telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by arbitration and for such determination the matter would be referred to an arbitrator in terms of the provisions of the said section of the Indian Telegraph act, 1885. According to the learned Court below, the declaration as sought for by the plaintiff in the plaint, apparently did not come under the purview or ambit of section 7b (1) of the Indian Telegraph Act, 1885. (5.) IT appears upon perusing the instant application and the order impugned, the plaintiff had filed the title suit in the year 2004 praying inter alia, for the following reliefs:- "a) Decree for declaration the Plaintiff was/is not the subscriber of telephone No. 2476296. b) Decree for Declaration that the defendant cannot demand the sum of Rs. 1,01,797.00 towards the dues of Telephone No. 247-6296. c) Decree for restoration of Telephone No. 247-5030 illegally disconnected by the defendant in the office of the plaintiff at 10/1, elgin Road, Calcutta -700020. b) Decree for Declaration that the defendant cannot demand the sum of Rs. 1,01,797.00 towards the dues of Telephone No. 247-6296. c) Decree for restoration of Telephone No. 247-5030 illegally disconnected by the defendant in the office of the plaintiff at 10/1, elgin Road, Calcutta -700020. d) Decree for Mandatory injunction directing the defendants their agent and servants to cancel and revoke the demand of Rs. 1,01,797.00 and to demand any amount in respect of Telephone No. 247-6296. e) Temporary injunction restraining the defendants to take any action to realise the sum of Rs. 1,01,797.00 towards the purported demand in respect of the telephone No. 2476296 and to take any action in pursuance to that." (6.) FROM prayer a) above, it is clear that the plaintiff was seeking a declaration that it was not a subscriber of telephone no. 247-6296. (7.) SECTION 7 B (1) of the Indian Telegraph Act, 1885 is reproduced herein below:-"7b. Arbitration of disputes.- (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purpose of such determination, be referred to an arbitrator appointed by the central Government either specially for the determination of that dispute or generally for the determination of disputes under this section. " (8.) ON a plain reading of the aforementioned provisions of law, it is patently clear that for purpose of invoking section 7b (1) of the Indian Telegraph Act, 1885, a dispute must arise between the authority and the person for whose benefit the line, appliance or apparatus is, or has been provided. Since the plaintiff has sought for a declaration that it was not a subscriber of the telephone connection mentioned in prayer a), the learned Court below rightly observed in the order impugned that the declaration as sought for by the plaintiff in the plaint did not come under the purview or ambit under section 7b (1) of the Indian Telegraph Act, 1885. (9.) SO far as the other ground of rejection of the application of the defendant by the learned Court below is concerned, the provision of sub-section (2) of section 8 of the Arbitration and Conciliation Act, 1996 needs to be taken into consideration. (9.) SO far as the other ground of rejection of the application of the defendant by the learned Court below is concerned, the provision of sub-section (2) of section 8 of the Arbitration and Conciliation Act, 1996 needs to be taken into consideration. For convenience, section 8, sub-section (1) and sub-section (2) of the Arbitration and Conciliation Act, 1996 are reproduced herein below: "8. Power to refer parties to arbitration where there is an arbitration agreement.-(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof." (10.) FROM a reading of sub-section (2) of section 8 of the Arbitration and conciliation Act, 1996 as quoted above, it appears to me that production of the original arbitration agreement or a duly certified copy thereof, is mandatory for the purpose of a judicial authority to exercise its jurisdiction under sub-section (1) of section 8 of the Arbitration and Conciliation Act, 1996. (11.) THE learned Court below has specifically observed in the order impugned that in the instant case no arbitration agreement in original or any certified copy had been produced. (12.) FOR reasons discussed above, I do not notice any infirmity in the order impugned so as to warrant interference by this Court exercising its powers under Article 227 of the Constitution of India. (13.) IN the circumstances, the instant revisional application stands dismissed, however, without any order as to costs. Revisional application dismissed.