Plaza Garments vs Textile Apparels

J.D. Kapoor, J.—This is an application under Order 7 Rule 11 CPC on behalf of respondent no.1 seeking rejection of the petition u/s 9 of the Arbitration Act, 1996 on the ground the unless and until arbitration clause is invoked, the application u/s 9 is not maintainable. Provisions of Order 7 Rule 11 strictly pertain to the suits where the plaints are filed. The plaint can be rejected if it does not disclose a cause of action or where the relief claimed is properly valued but the plaint is wrong insufficiently stamped or the suit is barred by any law.

By no stretch of imagination the application u/s 9 of of the Act can be placed at the pedestal of a suit or even substantive proceedings and as such the provisions of Order 7 Rule 11 CPC are not at all applicable.

Moreover the objection raised in the application as to its maintainability, is also of no substance as according to the respondent without giving notice to the respondent the petitioner cannot approach directly u/s 9 of the Arbitration Act for seeking interim relief or directions.

Section 9 of the Act contemplates that there should be an intention of the party to get its disputes arbitered upon. Merely a party does not notice the opposite party for appointment of the Arbitrator does not mean that the aggrieved party has no intention to seek the redressal of the disputes by way of arbitration. In a recent judgment in Sundaram Finance Limited v. NEPC India Limited 1999 (1) Sc 126 the Supreme Court has taken a categorical view that when the application u/s 9 is filed and the proceedings have not commenced u/s 21 of the Act it would not be necessary that notice invoking the arbitration clause must be issued to the opposite party before an application u/s 9 is made.

In view of the aforesaid provision of law the instant application has no merit and is dismissed.

The application stands disposed off.

OMP 75/97

The pleadings are complete.

List on 7th May, 2002.