Calcutta High Court (Appellete Side)
Sri Sukhendra Kumar Rudra vs M/S. Ma Tara Builders on 3 January, 2022
03.01.2022
Ct. No.18
Item No.32
AJ.
C.O. 1288 of 2018
CAN 1 of 2021
CAN 2 of 2021
(Through Video Conference)
Sri Sukhendra Kumar Rudra
-Vs-
M/s. Ma Tara Builders, represented
by Sri Bidyut Chakraborty & Anr.
Mr. Mohit Gupta,
Mr. Shameek Chakrborty,
Ms. Ruxmini Basu Roy.
...for the petitioner.
Mr. Susenjit Banik,
Ms. Sutapa Mukhopadhyay.
.......for the opposite parties.
In Re: CAN 1 of 2021
with
CAN 2 of 2021
CAN 1 of 2021 is an application for recalling of
the order dated December 05, 2019 whereby the
revisional application was dismissed for default and
CAN 2 of 2021 is an application for condonation of
delay in filing the aforesaid application.
Perused the applications.
The said delay has been satisfactorily
explained and sufficient cause has been shown in the
application for recalling of the order dated December
05, 2019 which prevented the petitioner from
appearing before the Court when the matter was
called on for hearing.
The order dated December 5, 2019 is,
therefore, recalled on condonation of delay.
C.O. 1288 of 2018 is restored to its original file
and number.
CAN 1 of 2021 and CAN 2 of 2021 are
disposed of without any order as to costs.
In Re: C.O. 1288 of 2018
By consent of the parties, the revisional
application is taken up for hearing.
The defendant no.1 in a suit for declaration of
title and permanent injunction is the petitioner of the
present application under Article 227 of the
Constitution of India which is directed against order
dated March 15, 2018 passed by the 2nd Court of the
learned Civil Judge (Junior Division), Sealdah in the
said suit being Title Suit No. 10 of 2015.
The petitioner in the said suit filed an
application under Section 8 of the Arbitration and
Conciliation Act, 1996 praying reference of the dispute
sought to be raised in the suit to arbitration.
The learned Trial Judge, by the order
impugned, has dismissed the said application on the
ground that the original agreement has not been
placed along with the said application.
Mr. Mohit Gupta, learned advocate appearing
on behalf of the petitioner submits that the existence
of the agreement and an arbitration clause therein are
not in dispute, therefore, non-filing of the original
agreement along with the application under Section 8
of the said Act of 1996 is a mere technicality for which
the prayer for reference to the arbitration cannot be
denied.
To fortify his aforesaid submissions he places
reliance on the decision of the Hon'ble Supreme Court
in the case of BHARAT SEWA SANSTHAN -VS- U.P.
ELECTRONICS CORPORATION LTD. reported in
(2007) 7 Supreme Court Cases 737 and a decision of
the learned Single Judge of this Court in the case of
RAJEEV MAHESHWARI & ANR. -VS- INDU KOCHER
& ORS. reported in 2011(3) CHN (CAL) 680.
Mr. Susenjit Banik, learned advocate
appearing on behalf of the plaintiffs/opposite parties,
on the other hand submits that the dispute sought to
be raised in the connected suit does not come within
the sweep of the arbitration clause of the said
agreement. He emphatically submits that in fact there
is no valid arbitration agreement between the parties
requiring reference of the disputes raised in the suit to
arbitration.
Having heard the learned advocate for the
parties and on perusal of the records it appears that
the existence of an agreement between the parties and
an arbitration clause in the said agreement are not in
dispute. Whether the disputes sought to be raised in
the suit are coming within the purview of the
arbitration clause of the said agreement or not is not a
relevant consideration in deciding an application
under Section 8 of the said Act of 1996.
The Court in referring the parties to
arbitration under the said provision of the said Act is
only obliged to find prima facie that there exists a
valid arbitration agreement.
The existence of an agreement with an
arbitration clause therein when is not in dispute, filing
of the original agreement along with the application for
referring the parties to the arbitration is a mere
technicality for which the said prayer cannot be
denied. The judgments cited by Mr. Gupta are
apposite to the context.
The order impugned for the aforesaid reason is
not sustainable and is accordingly set aside.
The learned Trial Judge is requested to decide
the said application afresh in accordance with law.
C.O. 1288 of 2018 is disposed of with the
above terms without any order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties subject to
compliance with all requisite formalities.
(Biswajit Basu, J.)
