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2021 DIGILAW 309 (MP)

Dileep Harjani v. Rakesh Manocha

2021-03-04

ANJULI PALO

body2021
JUDGMENT : Anjuli Palo, J. 1. Heard finally with the consent of learned counsel for the parties. 2. This civil revision has been filed by the applicants under Section 115 of the Code of Civil Procedure (hereinafter referred to as the CPC) being aggrieved by the order dated 4.12.2020 passed by 23rd Civil Judge Class-I, Jabalpur in Regular Civil Suit No. 699-A/2020 whereby the application filed by the applicants under Order 7 Rule 11 of the CPC has been rejected. 3. The facts of the case, in short, are that the plaintiffs/respondents filed a civil suit before the trial Court to declare the sale deed dated 29.10.2019 as void ab initio because it has been executed by the defendant No. 3 in favour of defendant Nos. 1 and 2 by playing fraud without taking the consent of the plaintiffs and therefore, it has no binding effect on the plaintiffs. In the said civil suit after receiving the notice, the applicants/defendants filed an application under Order 7 Rule 11 of the CPC for dismissal of the suit on the ground that ad-valorem Court fee has not been paid by the plaintiffs and the suit filed by the plaintiffs is barred by law because there is a remedy for appointment of an Arbitrator. The trial Court rejected the application filed by applicants/defendants vide impugned order. Being aggrieved thereby this civil revision has been filed. 4. Learned counsel for the applicants/defendants submits that the trial Court has committed error in ignoring the legal provision of the Court fees Act and suit valuation Act because there is a specific provision that for declaring the sale deed void, ad-valorem court fee is required to be paid. It is further submitted that as per clause (O) of the agreement, there is specific remedy for appointment of the arbitrator, therefore, the suit of the plaintiff is barred by jurisdiction of Civil Court under the Provision of Arbitration Act. Learned counsel for the applicant has placed reliance on the decision of this Court in Ambika Prasad Vs. Shriram Shiromani reported in 2011 MPLJ 184 wherein this Court has observed that, where the executant of the sale deed wants it to be annulled, he has to seek cancellation of that deed for which ad valorem court fee on the consideration stated in the sale deed is payable. Shriram Shiromani reported in 2011 MPLJ 184 wherein this Court has observed that, where the executant of the sale deed wants it to be annulled, he has to seek cancellation of that deed for which ad valorem court fee on the consideration stated in the sale deed is payable. The plaintiffs in their suit for declaration have prayed that the sale deed be declared as void by alleging that it was executed by Plaintiff 1 and his thumb impression were obtained on it by playing fraud and misrepresentation. The sale deed is voidable and the plaintiffs who have alleged otherwise are obliged to prove it as void. The plaintiffs, therefore, have to pay ad valorem court fee on the consideration stated in the sale deed. In view of the aforesaid, it is prayed that the impugned order may be set aside and by allowing the application filed by the applicants/defendants under Order 7 Rule 11 of the CPC, the suit filed by the plaintiffs/respondents may be dismissed. 5. On the other hand learned counsel for the respondents/plaintiff submits that the learned trial Court has rightly dismissed the application filed by the applicants/defendants under Order 7 Rule 11 of the CPC. 6. I have heard learned counsel for the parties at length and gone through the impugned order. The sale-deed dated 29.10.2019 has not been executed by the plaintiffs and it has been executed by defendant No. 3 in favour of defendant Nos. 1 and 2 by playing fraud without taking consent of the plaintiffs, therefore, plaintiffs are not bound to pay ad-valorem Court fees. It is further submitted that the provision of the Arbitration Act is not applicable in this case because defendant No. 1 and 2 were not the party to the agreement dated 20.3.2017 executed between the plaintiffs and defendant No. 3. He has placed reliance on the judgments of the Supreme Court in Sukanya Holdings (P) Ltd. Vs. Jayesh H. Pandya and another reported in (2003) 5 SCC 531 and India Household and Healthcare Ltd. Vs. LG Household and healthcare Ltd. reported in (2007) 5 SCC 510 . 7. The Supreme Court in the cases of Sukanya Holdings (P) Ltd. Vs. Jayesh H. Pandya and another (supra) and India Household and Healthcare Ltd. Vs. LG Household and healthcare Ltd. (supra). The Supreme Court in Sukanya Holdings (P) Ltd. (supra) has observed as under:- 12. LG Household and healthcare Ltd. reported in (2007) 5 SCC 510 . 7. The Supreme Court in the cases of Sukanya Holdings (P) Ltd. Vs. Jayesh H. Pandya and another (supra) and India Household and Healthcare Ltd. Vs. LG Household and healthcare Ltd. (supra). The Supreme Court in Sukanya Holdings (P) Ltd. (supra) has observed as under:- 12. For interpretation of Section 8, Section 5 would have no bearing because it only contemplates that in the matters governed by Part I of the Act, the judicial authority shall not intervene except where so provided in the Act. Except Section 8, there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the Arbitral Tribunal, if (1) the parties to the arbitration agreement have not filed any such application for referring the dispute to the arbitrator; (2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof. This would, therefore, mean that the Arbitration Act does not oust the jurisdiction of the civil court to decide the dispute in a case where parties to the arbitration agreement do not take appropriate steps as contemplated under sub-sections (1) and (2) of Section 8 of the Act. 13. Secondly, there is no provision in the Act that when the subject-matter of the suit includes subject-matter of the arbitration agreement as well as other disputes, the matter is required to be referred to arbitration. There is also no provision for splitting the cause or parties and referring the subject-matter of the suit to the arbitrators. 14. Thirdly, there is no provision as to what is required to be done in a case where some parties to the suit are not parties to the arbitration agreement. As against this, under Section 24 of the Arbitration Act, 1940, some of the parties to a suit could apply that the matters in difference between them be referred to arbitration and the court may refer the same to arbitration provided that the same can be separated from the rest of the subject-matter of the suit. As against this, under Section 24 of the Arbitration Act, 1940, some of the parties to a suit could apply that the matters in difference between them be referred to arbitration and the court may refer the same to arbitration provided that the same can be separated from the rest of the subject-matter of the suit. The section also provided that the suit would continue so far as it related to parties who have not joined in such application. 15. The relevant language used in Section 8 is: "in a matter which is the subject of an arbitration agreement". The court is required to refer the parties to arbitration. Therefore, the suit should be in respect of "a matter" which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced - "as to a matter" which lies outside the arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no question of application of Section 8. The words "a matter" indicate that the entire subject-matter of the suit should be subject to arbitration agreement. 8. The Supreme Court in India Household and Healthcare Ltd. Vs. LG Household and healthcare Ltd. (supra) has observed that as and when a question in regard to the validity or otherwise of the arbitration agreement arises, a judicial authority would have the jurisdiction under certain circumstances to go into the said question. 9. In view of the aforesaid discussion and in the light of aforesaid decisions of the Supreme Court, I do not find any perversity or illegality in the order passed by the trial Court. In my considered opinion the trial Court has rightly rejected the application filed by the defendants under Order 7 Rule 11 of the CPC. 10. Accordingly, this civil revision is hereby dismissed.