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2013 DIGILAW 1488 (BOM)

Narayan Shankar Thakur v. Sitabai Sitaram Thakur

2013-08-01

RAVI K.DESHPANDE

body2013
Judgment : 1. In a Special Civil Suit No.252 of 2008 filed by the Petitioner-Orig. Plaintiff, the Trial court has allowed the Application Exhibit 14 for referring the parties to the Arbitrator, in terms of Clause-9 of the Development Agreement dated 14.2.2005. Hence, the original Plaintiff is before this Court in this Writ Petition. 2. The Trial Court has recorded the finding that under the Agreement dated 14.2.2005 entered into between the Plaintiff and the Defendant Nos.1 to 14 there subsists Clause-9 for referring the dispute arising out of payment of consideration to the Arbitrator. It has also been held that there is no dispute amongst the parties with respect to the interpretation of the Agreement or concerning any part of the said Agreement. 3. Mr. Kulkarni, the learned Counsel appearing for the Petitioner has taken me through the copy of the plaint, the Clause-9 of the Arbitration and the impugned order passed by the Trial Court. He has referred to the provisions of Sections 7 and 8 read with Section 2(b) of the Arbitration and Conciliation Act, 1996 and relied upon three decisions of the Apex Court in the cases viz.( 1) Sandeep Kumar & Ors. Vs. Master Ritesh & Ors, reported in (2006) 13 SCC 567, (2) Sukanya Holdings (P)Ltd Vs. Jayesh H. Pandya & Anr., reported in (2003) 5 SCC 531 and (3) S.N. Prasad Hitk Industries (Bihar) Vs. Monnet Finance Ltd. & Ors., reported in (2011) 1 SCC 320 and urged that the claim in the plaint is not only against the Defendant Nos.1 to 14 with whom the Agreement, in question, was entered into on 14.2.2005, but also against the Defendant No.-15-CIDCO which has agreed to let out the suit properties to the Defendant Nos.1 to 14 on lease. He therefore submits that there cannot be splitting of claims; one to be referred to the Arbitrator and the another to be dealt with by the Civil Court in between the Plaintiff and the Defendant No.-15-CIDCO. He further submits that the Defendant No.-15-CIDCO is not a party to the Agreement dated 14.2.2005 and hence in view of the decisions cited, the Trial Court has committed an error in holding that the matter is required to be referred to an Arbitrator. 4. Per contra, Mr. He further submits that the Defendant No.-15-CIDCO is not a party to the Agreement dated 14.2.2005 and hence in view of the decisions cited, the Trial Court has committed an error in holding that the matter is required to be referred to an Arbitrator. 4. Per contra, Mr. Sakhare, the learned Senior Counsel for the Defendant Nos.1 to 14 has urged that in the plaint there is absolutely no claim made against the Defendant No.-15-CIDCO. The Agreement dated 14.2.2005, contains a Clause-9 regarding the reference of a dispute to an Arbitrator, which includes all sorts of disputes between the Plaintiff and the Defendant Nos.1 to 14 and therefore the Trial Court was right in referring the dispute for an arbitration. He relied upon two decisions of this Court in the case of (1) Smt. Barkibai U. Gharat & Ors. Vs. M/s Madhuraj Engineers & Builders & Ors on 13.12.2007 in Civil Revision Application No.307 of 2007 and (2) M/s Fiza Construction Vs. Smt. Parvati K. Thakur & Ors on 10.2.2010 in Writ Petition No.943 of 2010. Both these decisions are delivered by the learned Single Judges of this court. He has urged that this Court has held that merely because the CIDCO is party to the suit and it is not party to the arbitration agreement that does not prevent the Court from referring the matter to arbitration, as per the provisions of Section 7 and 8 read with Section 2(a) of the Arbitration & Conciliation Act, 1996. 5. At the outset, it has to be observed that none of the contentions which are raised by Shri Kulkarni, the learned Counsel appearing for the Petitioner were raised before the Trial Court. Hence, there is no reference to the said contention in the judgment of the Trial Court. He, however, submits that these are pure questions of law and interpretation of the Clause-9 of the Agreement dated 14.2.2005 and governed by the decision of the Apex Court. Hence, the same can be taken into consideration by this Court in writ jurisdiction. 6 It is not in dispute that the suit property is required to be allotted on lease by the Defendant No.15-CIDCO to Defendant Nos.1 to 14 and it is a fact that till this date, the Defendant Nos.1 to 14 have not become lessees of the Defendant No.15-CIDCO. 6 It is not in dispute that the suit property is required to be allotted on lease by the Defendant No.15-CIDCO to Defendant Nos.1 to 14 and it is a fact that till this date, the Defendant Nos.1 to 14 have not become lessees of the Defendant No.15-CIDCO. The Defendant Nos.1 to 14 have entered into an Agreement of Development on 14.2.2005 with the Plaintiff. The Agreement contains a Clause-9 of arbitration. The Defendant No.15-CIDCO is not party to the arbitration agreement. The arbitration clause, as has been interpreted by the Trial Court, deals with the dispute regarding failure to pay full consideration. According to the averments made in the plaint, the full consideration has been paid by the Plaintiff to the Defendant Nos.1 to 14. Such payments include the payment in cash and cheques. Hence, the question whether the full consideration has been paid or not is required to be dealt with by the Arbitrator and there is no serious dispute on this position. 7. In the two decisions relied upon by the learned Senior Counsel Shri Sakhare, the Defendant No.15-CIDCO was party to the suit, but it was not party to the arbitration agreement. The learned Single Judges of this Court have taken into consideration the decision of the Apex Court in the case of Sukanya Holdings (supra). The decision relied upon by Shri Kulkarni would not be applicable to the facts of the present case for the reason that the entire averments made in the plaint clearly disclose that there is no claim made against the Defendant No.15-CIDCO. In fact, there is a specific averments in para-7 of the plaint that the Plaintiff has no claim against the Defendant No.15-CIDCO. It is also the specific averment that since the CIDCO is the owner of the property, it has been joined as necessary and proper party in the suit. In the prayer clause of the plaint, a relief is claimed for specific performance of the Agreement dated 14.2.2005 against the Defendant No.1 to transfer the suit land in terms of the said Agreement, after obtaining the allotment from the CIDCO. There is no relief claimed against CIDCO. Hence, there is no question of splitting of claims and refusing to refer the matter to the arbitration. 8. There is no relief claimed against CIDCO. Hence, there is no question of splitting of claims and refusing to refer the matter to the arbitration. 8. The learned Counsel appearing for the parties have pointed out that the Trial Court, by the impugned order, returned the plaint to the Plaintiff to take proper steps in the proceedings before the Arbitrator, as per recitals in Clause-9 of the Development Agreement dated 14.2.2005. It is not in dispute that such an order could not have been passed. The Court should have passed an order of referring the parties to the arbitration in terms of Clause-9 of the Development Agreement dated 14.2.2005. Hence, to that extent the order impugned needs to be corrected. ORDER 9 In the result, the Writ Petition is allowed only to the extent of modification of the operative portion of the impugned order dated 24.2.2010 as under: The parties are referred to the arbitration in terms of the Clause-9 of the Development Agreement dated 14.2.2005. No interference is called for in rest of the order impugned. 10. The learned Counsel for the Petitioner submits that on 20.9.2010 while admitting the matter, this Court passed an order as under: “1. The matter needs to be heard at length. 2. Admit. 3. None of the parties shall create third party interest nor the CIDCO shall hand over possession of the plot to any of the parties, pending the petition. 4. Liberty to either party to move for early hearing if there is change in circumstances.” 11. He submits that the aforesaid interim order be continued for further period of 6 weeks. The request is opposed by the Respondents. Keeping in view the fact the interim order is operating from 28.9.2010, the same is continued for further period of 6 weeks. After expiry of the said period, the interim order shall stand vacated automatically without further reference to the Court. If any application is made under Section 9 before the Civil Court for grant of interim relief, the Civil Court shall not get influenced by the interim order passed by this Court and matter shall be decided on its own merits in accordance with law.