H.S. Nag & Associates (Pvt.) Ltd. vs Supreme Cooperative Group ...
1995 Latest Caselaw 901 Del

JUDGMENT

Jaspal Singh, J.

(1) The respondent seeks rejection of the plaint and for that has moved this application under Order 7 Rule 11 of the Code of Civil Procedure. Though the application has within its embryo number of objections, the learned' Counsel for the respondent has chosen to convass only two. His first objection revolves around Section 90 of the Delhi Cooperative Societies Act, 1972. Let us first ' have a look at the section before I proceed further. It is in following terms:- 90.Notice necessary in suits.-No suit shall be instituted against a cooperative society or any of its officers in respect of any act touching the business of the society until the expiration of three months next after notice in writing has been delivered to the Registrar or left at his office, staling the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."

(2) Admittedly, no notice had been given before institution of this petition under Section 20 of the Arbitration Act.

(3) It is urged that since a petition under Section 20 of the Arbitration Act is to be treated as a suit, therefore, a notice within the meaning of Section 90 of the Act was a pre-requisitc. However, in support of his contention the learned Counsel has shied away from relying upon any authority.

(4) True, Section 90 does provide that no suit shall be instituted against a Cooperative Society until the expiration of three months after notice in writing has been delivered to die Registrar or left at his office, staring the cause of action, the name, description and place of residence of the plaintiff and so also the reliefs which he claims. The question, however, is : Was any such notice required in the present case?

(5) In Sheet Chandra v. State Bank of India; ; it was held by a learned Single Judge of this Court that proceedings under the Arbitration Act could not be basically treated as a suit, their scope and purport being essentially different. Reference may also be made to yet another judgment reported as S.P.C. Engineering Co. v. Union of India; . This judgment too comes from the pen of a learned Single Judge. Therein too the Court had before it a petition under Section 20 of the Arbitration Act. The objection taken was that the petition was not maintainable for want of a notice under Section 80 of the Code of Civil Procedure. However, it was overruled on the ground that a petition under Section 20 though described as a suit would not be a suit for purposes of Section 80 of the Code of Civil Procedure. Getting support from these two judgments I hold that as far as Section 90 of the Act is concerned, it would apply to a suit and not to a petition under Section 20 of the Arbitration Act. Nothing more need be said on this aspect of the matter.

(6) The second objection relates to the terms of the contract. Mr. Talwar contends that there were three contracts in all and each was independent of the other. He submits that since arbitration clause was contained only in the first contract and not in sub sequent contracts and as bills were jointly raised with regard to all the three contracts the petitioner cannot avail of Section 20 of the Arbitration Act on the basis of the arbitration clause contained in the first contract.

(7) The so-called first contract is of 4th September, 1986. Though it relates to 7 .towers it speaks of the remaining 7 towers also. Besides other things, it says : "AND where as the contractor has also agreed to execute the work of seven towers with 100% external works with the said contract amount in the first instance and further work of the balance towers that would be entrusted to him within 4 months of the date of award of work at the same per sq.m rates arrived at the above lump sum price for each tower and for the alternate specifications."

And; "AND where as the contractor has also agreed to deposit a further sum against security deposit in advance at the time of award of balance work for 7 towers and in proportions of the work awarded to him and which would also be retained until the defects liability period."

(8) Thus it would be borne out from the so-called first contract itself that though by it at initial stages work was awarded for 7 towers, a broad working agreement had been arrived with regard to the remaining seven towers also. It would be revealed from the letter of the respondent dated 1st March, 1990 that there was no substantial change thereafter. The entire work was treated as one with the second limb of the contract carrying the nomenclature of Phase II.

(9) For what has been recorded by me above, I would hold that the arbitration agreement as contained in the agreement of 4th of September, 1986 would operate with regard to the entire work in question. This answers the second objection raised by the learned Counsel for the respondent.

(10) One thing more. When a defendant seeks rejection of the plaint, he must be taken to admit, for the sake of argument, that the allegations in the plaint are true modoet forma - in manner and form. Thus, the Court will reject the plaint where on the face of it, and not on the basis of other matters not available in the plaint itself, there appears to be no cause of action. But where, as here, it does not so appear, but requires further consideration, as here again, the Court will not reject the plaint,

(11) As already noticed, though the application contains other objections too only two objections referred to and dealt with by me above were taken, and as their finding goes against the respondent, the application under Order 7 Rule 11 is dismissed.