UOI and Others vs Amar Pal Singh

Indermeet Kaur, J.

1 Impugned order is dated 10.01.2008; the preliminary issue relating to the maintainability of the suit had been decided by the said order. It was noted that the suit as filed by the plaintiff Amar Pal Singh is maintainable in the present form; this was on the objection raised by the defendant in his written statement that the contract between the parties contained Clause 25 which provided for arbitration and in case of disputes arising between the parties, the matter should have been referred for arbitration and a suit was not maintainable. In view of the aforenoted objection, the aforenoted preliminary issue had been framed which had been answered in favour of the plaintiff. Record shows that the plaintiff Amar Pal Singh had filed a suit for recovery of Rs. 3,02,910/- for the work which had been advertised by the Union of India in which the plaintiff was enlisted as a contractor; the parties had entered into an agreement bearing No. 06/AE/4-I/IDiv/2002/2003 along with general terms and conditions of a contract for completing the job work which had been given to the plaintiff. Clause 25 of the said agreement contained the arbitration clause; there is no dispute to this factum.

Record shows that after the plaint had been filed, a written statement had been filed by the defendant wherein a preliminary objection about the maintainability of the suit because of the existence of the arbitration clause was taken; in the written statement the defendant had also answered all the contentions of the plaintiff on its merits. Replication had also been filed. Issues were framed on 28.02.2007 and issue No. 1 (which as per record) relates to the maintainability of the present suit was accordingly treated as a preliminary issue.

Admittedly no formal application u/s 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ''said Act'') had been filed; the written statement had been filed; it is not in dispute that in this written statement all the merits of controversy had been purported to be answered by the defendant. The requirement of Section 8 of the said Act had not been met with.

Section 8 of the said Act specifically postulates that the application seeking appointment of an Arbitrator must be filed before the first statement of defence has been made by the applicant; in this case, the written statement had been filed in February, 2007 wherein a bald preliminary objection on this count had been taken; rest of the written statement running into more than 9 pages had contested the suit entirely on its merits. Record further shows that the replication had also been filed. Till then, the respondent never pressed his prayer for appointment of an Arbitrator; issues were framed on 28.02.2007 when the first issue was treated as a preliminary issue.

The original arbitration agreement was also not filed and nor was the certified copy of the same filed on record. It was only on 23.10.2007 i.e. much after the framing of issues that this arbitration agreement was filed. The first statement of defence has already been submitted by the petitioner/defendant in February, 2007; even up to the time when the issues were framed it was never the prayer of the defendant that he wishes to invoke the arbitration clause; the defendant had waived this right.

The essential ingredients for invoking the provisions of Section 8 of the said Act are:-

(1) there is an arbitration agreement, (2) a party to the agreement brings an action in the Court against the other party, (3) subject matter of the action is same as the subject matter of the arbitration agreement and (4) the other party moves the Court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. The last provision creates a right in the person bringing the action to have the dispute adjudicated by Court, once the other party has submitted his first statement of defence.

The written statement had contained the defence of the defendant; even at this stage, he did not press his claim for invoking the arbitration clause; it was only a bald objection taken in the written statement which was never pressed; the entire written statement otherwise contained the detailed defence of the defendant. Neither the original arbitration agreement nor the certified copy of the same had also been filed till October, 2007 which was much after the date even of framing of issues.

The averments made in the plaint have also been perused. This suit is a suit for recovery; contention is that the aforenoted amounts (details of which are given in para 6 of the plaint) relates to the measurement of the work done under contract by the plaintiff; it does not appear to be relating to the contract, designs, drawings, specifications, estimates, instructions, orders or otherwise which are the subject matter of the arbitration clause as is evident from clause 25 (page 69 of the paper book); subject matter of the arbitration agreement and the subject matter of the suit are even otherwise distinct. The impugned order in this background holding that the suit is maintainable suffers from no infirmity. Petition is without any merit. Dismissed.