Dilip Singh Singhavi And Others vs Shekh Mohsin Hasan And Others

Rekha Borana, J

The present revision petition has been preferred against the order dated 03.01.2015 passed by the Additional Civil Judge, Jodhpur Metro No.1, Jodhpur in Civil Original Suit No.08/2014 whereby the application under Order 7 Rule 11, CPC as preferred by the defendants had been rejected.

In a suit preferred by the plaintiffs for permanent and mandatory injunction, an application under Order 7 Rule 11, CPC was preferred by the defendants with the submission that the agreement as entered into between the parties provides for an arbitration clause for resolution of disputes. Hence, there being a specific arbitration clause, the present suit cannot be entertained by the Civil Court. The said application as preferred by the defendants has been rejected by the Court below on the ground that the agreement in question is insufficiently stamped and hence, the same cannot be acted upon for the purpose of reference to arbitration.

Learned counsel for the respondents informed this Court that while moving an application under Order 7 Rule 11, CPC before the Civil Court in the suit, the defendants simultaneously preferred an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act of 1996’) for appointment of an arbitrator and the said application being S.B. Arbitration Application No.03/2017 (Dilip Singhavi vs. Shekhaddin Mohemmad) has also been dismissed on 20.04.2018. Learned counsel submitted that after rejection of the application for appointment of arbitrator, the ground if any, even otherwise, does not survive. Learned counsel placed on record the order dated 20.04.2018 passed in S.B. Arbitration Application No.03/2017.

Learned counsel further submitted that even otherwise, the respondents being not a party to the agreement as alleged, the arbitration clause, even if any, would not govern them.

Learned counsel for the petitioners is not in a position to refute the fact of the dismissal of application under Section 11 of the Act of 1996. He also fairly admitted that the ground as raised in the application under Order 7 Rule 11, CPC does not survive any more. However, he submitted that the defence qua the agreement be kept open and it be observed that he would be at liberty to raise all the grounds in the written statement before the Court below.

Heard learned counsel for the parties and perused the material available on record.

Vide order dated 20.04.2018, the application under Section 11 of the Act of 1996 as preferred by the defendant Dilip Singhavi was rejected on the specific ground that the agreement in question was deficiently stamped and hence, the same cannot be acted upon and the arbitrator cannot be appointed on basis of the said agreement.

In view of the above specific finding, no ground of the suit being not maintainable because of there being an arbitration clause in the agreement, survives and hence, the order impugned cannot be interfered with.

So far as the request made by learned counsel for the petitioners regarding the defence to be kept open is concerned, it is needless to observe that the consequence of the document being deficiently/insufficiently stamped and its effect on the proceedings in the civil suit cannot be and is not required to be gone into in this revision petition. The same would be open to be raised during the suit proceedings and the same would be dealt by the Court in accordance with law.

In view of the above observations, the present revision petition is dismissed.

All pending applications, if any, stand disposed of.