BOC India Ltd. vs Instant Sales Pvt. Ltd.

Jyotirmay Bhattacharya, J.—This application under Article 227 of the Constitution of India is directed against an order being No. 29 dated 22nd January, 2007 passed by the learned Civil Judge, Senior Division, 6th Court at Alipore, in Money Suit No 44 of 2004 at the instance of the defendant/petitioner.

The plaintiff/opposite party filed a suit for realisation of money by claiming certain rights on the basis of an agreement entered into between the parties on 4th January, 2002. Admittedly, the said agreement contains an arbitration clause.

Knowing fully well about the said arbitration clause, the defendant/petitioner filed his written statement in the said suit and thereby submitted itself to the jurisdiction of the Civil Court by waiving its right to get the dispute settled through arbitration. After commencement of recording of evidence in the suit, the defendant/petitioner filed an application u/s 89 of the CPC for referring the dispute to arbitration. Such an application was filed by the defendant/petitioner as the PW-1, being the constituted attorney of the plaintiff/opposite party stated in his cross-examination that the plaintiff was ready to settle the dispute as per the said arbitration clause.

The learned Trial Judge by the order impugned rejected the petitioner''s said application by holding inter alia that since the hearing of the suit has proceeded with substantially and the defendant/petitioner submitted itself to the jurisdiction of the Civil Court by waiving its right to get the dispute settled through arbitration, the petitioner''s prayer for reference to arbitration u/s 89 of the CPC cannot be allowed at this stage.

Though, it is rightly pointed out by Mr. Mukherjee that the constituted Attorney of the plaintiff Company, being PW-1, in his cross-examination stated that the plaintiff was ready to settle the dispute as per the said arbitration clause, but subsequently he clarified the said statement by filing an, affidavit on 24th July, 2006. In the said affidavit, the said Constituted Attorney of the plaintiff made it clear that the management company of the plaintiff was not agreeable to solve the dispute through the arbitration as per the decision of the management of the said company.

Thus, fact remains that at the time of consideration of the defendant''s application for reference of the dispute to arbitration u/s 89 of the Civil Procedure Code, the plaintiff made it clear through the said affidavit filed by its Constitution attorney, that the plaintiff was not agreeable to settle the said dispute through arbitration.

In my view, no Court can compel any unwilling party to submit to the jurisdiction of the arbitration and to get their dispute settled -through arbitration as per Section 89 of the Civil Procedure Code. It is only when all the parties agree to get their dispute settled and express their intention in this regard before the Civil Court, the Civil Court can formulate the terms of settlement and refer the dispute to arbitration.

Since the plaintiff was unwilling to get its dispute settled through arbitration, this Court does not find any reason to interfere with the order impugned.

The revisional application thus, stands rejected.

Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.