Prashant Bhagwantrao Raikwar vs Ku. Pranita D/O. Wasudeorao Wajge ...
2017 Latest Caselaw 363 Bom

                                     1                           942-CRA-56-16.odt


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

                 CIVIL REVISION APPLICATION NO. 56/2016

APPLICANT :                          Prashant Bhagwantrao Raikwar, Aged about : 
                                     36 years, Occupation : Business, R/o Raikwar 
                                     Agro and Realities Pvt. Ltd. Company, 
                                     Raipura, Tq. Achalpur, Dist. Amravati.

                                                    ..... Original Defendant No.2

                                         VERSUS

 RESPONDENTS :                1.     Ku. Pranita d/o Wasudeorao Wajge, Aged 
                                     about : 15 year, Occupation : Education.

                              2.     Bhavesh s/o Wasudeorao Wajge, Aged about :
                                     14 years, Occupation : Education.

                                     1 and 2 minor through their legal guardian  
                                     Anmol S/o Wasudeorao Wajge, Aged about : 
                                     27 years ,Occu. : Service, R/o Vanarakshak 
                                     Vahatuk Va Vipanan Karyalaya, Alapalli, 
                                     Road, Ballarshah, District : Chandrapur.

                                               ..... Original Plaintiff Nos.1 and 2

                              3.     Wasudeorao Sitaramji Wajge, Aged about : 53
                                     years, Occupation : Service, R/o Forest 
                                     Quarters, Forest Depot, Paratwada, Tq. 
                                     Achalpur, District : Amravati.

                                                    ..... Original Defendant No.1

                              4.     Executive Engineer MSEDCL,
                                     Achalpur, Tq. Achalpur, 
                                     District : Amravati.

                                                    ..... Original Defendant No.3




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Mr. J. B. Kasat, Advocate for the applicant.
Mr. Tapish Jain, Adv. h/f Mr. S.S.Dhengale, Advocate for the respondent 
Nos.1 & 2.
None for the respondent Nos.3 & 4.
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                                              CORAM :    A.S.CHANDURKAR, J.

                                              DATE     : 02/03/2017.
ORAL JUDGMENT :


1.       Heard.

2. The challenge in the present Civil Revision Application is to the order

passed by the Trial Court below Exh.12 dated 21/03/2016 whereby the

application filed by the applicant herein under Section 8 of the Arbitration

and Conciliation Act, 1996 (for short "the said Act") for referring the dispute

to arbitration has been rejected.

3. It is the case of the applicant that on 10/05/2013, land belonging to

the Non-Applicant Nos.1 to 3 was purchased by executing a registered sale

deed. In the said sale deed, as per Clause 11, it was stated that in case of any

dispute between the parties in relation to the said sale deed, the same shall

be referred for decision by the Arbitrator. The Non-Applicant Nos.1 and 2

filed a suit for declaration and cancellation of the aforesaid sale deed on the

ground that they were minors and that their father had no right to alienate

the suit property. In said suit, a prayer was also made to direct the Non-

3 942-CRA-56-16.odt

Applicant No.4 to restore the electricity supply of the suit property. The

applicant filed an application below Exh.12 praying that the suit be referred

for arbitration in view of Clause 11 in the sale deed. This application was

opposed by the non-applicant Nos.1 and 2 and by the impugned order, the

Trial Court rejected said application. Being aggrieved, the defendant No.2

has filed this revision application.

4. Shri J. B. Kasat, learned counsel for applicant submitted that as per

Clause 11 of the sale deed dated 10/05/2013 any dispute with regard to the

said sale deed between the parties ought to have been referred for

arbitration. He submitted that initially notice dated 10/07/2015 was also

issued by the applicant after which a statement of claim was also filed. In

those proceedings, the non-applicant Nos.1 and 2 had entered appearance

and had sought time to file reply. Relying upon the Judgment in case of

P.Anand Gajapathi Raju and others Vrs. P.V.G. Raju (Dead) and others,

(2000) 4 SCC 539, it was submitted that all conditions that were

contemplated by Section 8 of the said Act were fulfilled and therefore, the

matter ought to have been referred for arbitration. It is submitted that the

Trial Court erred in rejecting said application.

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5. Shri Tapish Jain, learned counsel for the non-applicant Nos.1 and 2

supported the impugned order. According to him, the said sale deed executed

by non-applicant No.3 was without legal authority or consent of non-

applicant Nos.1 and 2, who were minors. He submitted that on that basis,

suit had been filed and cancellation of said sale deed was sought. It was

submitted that under Section 8 of the Hindu Minority and Guardianship Act,

1956, the non-applicant No.3 had no right to alienate suit property. It was,

therefore, submitted that the order passed by the Trial Court was just and

proper.

6. I have heard learned counsel for the parties at length. As per Clause 11

of the sale deed dated 10/05/2013 that has been executed by non-applicant

No.3 as guardian of non-applicant Nos.1 and 2, dispute if any, with regard to

the said sale deed was to be settled through arbitration. It is not in dispute

that pursuant to disputes arising, the applicant had sought initiation of

proceedings under the said Act. In the suit filed by the non-applicant Nos.1

and 2, cancellation of aforesaid sale deed has been sought. It is also prayed

that the defendant No.3 in the suit be directed to restore the electricity

supply. In case of Sukanya Holdings (P) Ltd. Vrs. Jayesh H. Pandya and

another, (2003) 5 SCC 531, the Hon'ble Supreme Court while considering

the provisions of Section 8 of the said Act, has held that the suit as filed

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should be with regard to the matter which the parties have agreed to refer. It

was held that the expression "a matter" would mean that the entire subject

matter of the suit should be the subject of arbitration agreement. In the

present case, the defendant No.3 in the aforesaid suit is not a party to the

arbitration agreement. Similarly, prayer clause (g) of the plaint, cannot be

resolved through the arbitration as the defendant No.3 is not a party to the

sale deed dated 10/05/2013. It is well settled that in such a situation, the

relief sought in the suit cannot be bifurcated and entire matter has to be

referred for arbitration.

7. The decision relied upon by the learned counsel for the applicant holds

that only if all the conditions contemplated by Section 8 of the said Act are

satisfied, the Court has to refer the matter for arbitration. In the present case,

as the subject matter of the suit is distinct from the matter that has been

agreed to be resolved through arbitration, the ratio of said judgment would

not apply to the present facts.

8. In view of aforesaid, I do not find that the Trial Court committed any

error when it rejected the application filed below Exh.12. There is no merit in

the Civil Revision Application. Same is, therefore, dismissed. No costs.

JUDGE

Choulwar