Sahara Prime City Ltd. Sahara City ... vs Yeshwant Sheshrao Baraskar
2016 Latest Caselaw 1481 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                    
                          WRIT PETITION      No. 114 OF 2016




                                                   
    Sahara Prime City Ltd.,
    Sahara City Homes, village Gavsi Manapur,
    Wardha Road, Nagpur,




                                          
    through its authorised signatory
    Anuj Kumar Dwivedi
    s/o D.P. Dwivedi            ig                      .... PETITIONER.


                              VERSUS
                              
    Yeshwant Sheshrao Baraskar,
    aged about 53 years,
    Occupation : Service,
      


    r/o Surendranagar
    Nagpur.                                          ....  RESPONDENT.
   



    Shri A.J. Khan Advocate for the Petitioner.





    Shri Sanjay Patrikar Advocate for the Respondent.
                                     .....


                                       CORAM : S.B. SHUKRE, J.

DATED : 13.04.2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally

by consent of parties.

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2. The challenge in this petition raised by the petitioner

is that the application filed by him under Section 9-A, Code of

Civil Procedure, has been illegally rejected by the learned Civil

Judge, Sr.Dn., Nagpur, on 05.11.2015.

3. According to learned counsel for the petitioner, the

suit is barred by virtue of arbitration clause. Learned counsel for

the respondent states that arbitration clause in the agreement is

not applicable to the claim of refund made in the suit filed by the

respondent against the petitioner. In order to see the correctness

of the argument canvassed on behalf of either of the parties, it

would be necessary for us to consider the relevant clause

providing for arbitration clause. This clause is 20 in the

agreement and it reads as under :

"In case any dispute between the company

and any applicant regarding interpretation of or exercise of

any terms of these presents, the opinion of the Company

shall prevail. However, if any applicant aggrieved by such

decision, the dispute may be referred to an arbitrator jointly

appointed by the company and such applicant and the

proceedings will be conducted in accordance with the

provisions of "Arbitration and Conciliation Act, 1966." The

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award shall be final and binding upon all the parties."

It is clear from the language employed in this clause

that only two types of disputes can be referred to an arbitrator.

The first kind of dispute is regarding interpretation of terms of the

agreement and second type of dispute is of exercise or

enforcement of any of the terms of the agreement. The suit has

been admittedly filed for refund of amount paid to the petitioner

and for damages which would show that the claim made in the

suit is not covered by clause 20 of the agreement.

4. Learned counsel for the petitioner submits that the

trial Court has not discussed the claim from the submission made

before it with regard to lack of jurisdiction in it. In support, he

cites the case of Kamlakar Eknath Salunkhe v. Baburav

Vishnu Javalkar reported in 2016(1) Mh.L.J. 159. In this case,

the Hon'ble Apex Court has held that the Court must determine

the issue of preliminary objection before proceeding with the

application for interim relief. On a perusal of the impugned order,

I find that it is exactly what has been done by the learned Civil

Judge. It is also seen that the learned Civil Judge has recorded his

reason while rejecting the application. Therefore, I see no merit in

the submission made by learned counsel for the petitioner.

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5. Learned counsel for the petitioner, in support of his

submission, has also referred to the cases in (I) J.K. Jain & ors. v.

Delhi Development Authority & ors. AIR 1996 SC 318 (ii)

Ashok Leyland Finance Ltd. v. Ramchandra Madari

Katkamwar - 2003(1) Mh.L.J. 536; and (iii) Hindustan

Petroleum Corporation Ltd. vs. M/s Pinkcity Midway

Petroleums - AIR 2003 SC 2881.

6. All the above referred cases, on perusal of each of

them, I must say, have been decided on different sets of facts

than the set of facts in the present matter. In the first case, there

was absence of arbitration clause and by reading the terms and

conditions of the tender form it was found that the arbitration

clause was deemed to be part of the agreement because the

agreement specifically provided that the terms and conditions

contained in the tender form shall be binding between the parties,

which admittedly included an arbitration clause. In the present

case, there is included in the agreement itself a clause for

referring certain kinds of dispute to the arbitrator but the dispute

involved herein being regarding entitlement of the respondent to

claim refund of the amount already paid to the petitioner could

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not be said to be falling within the scope of arbitration clause

contained in the present agreement. Therefore, this case law

would not be of any help to the petitioner.

7. In the second case referred to above, there was a

clause regarding arbitration and I have already found that the

arbitration clause involved in this case did not include the dispute

of the present nature. ig In the third case also, there was present

in the agreement an arbitration clause, whereas in the present

case the arbitration clause contained in the agreement did not

take within its fold the dispute of the present nature. Therefore,

both these cases would also be of not assistance to the petitioner.

8. In the result, writ petition stands dismissed. Rule

discharged. No costs.

JUDGE

/TA/