M/S. Amar Nath Charanji Lal & Co. vs M/S. Attalika Realtors Pvt. Ltd.
1996 Latest Caselaw 184 Del

JUDGMENT

S.D. Pandit, J.

1. Plaintiff M/s. Amar Nath Charanji Lal (ANCL) had taken the contract of construction of Shopping Complex known as Tej Kumar Plaza at Hazratganj, Lucknow on 9.12.1993. After the said contract was entered into plaintiff had started the construction work but according to him, his contract has been abruptly rescinded by the respondent without any lawful cause. On account of the same disputes have arisen between the parties and, therefore, plaintiff has come before the court by filing the present suit purporting to be a suit under Section 20 of the Indian Arbitration Act, 1940. He had also moved an application under Section 41 of the Arbitration Act for seeking certain ad-interim injunction and the stay was granted in his favour. Thereafter, the defendant had put in appearance and had filed I.A. 7989/95 under Order XXXIX Rule 4 to vacate the exparte order of injunction. In the meantime, parties, had certain negotiations and settlement and they recorded their settlement on the document dated 12.8.1995 and the said document has been filed by the parties jointly on 14.8.1995.

2. It is, contended by the defendant that in view of the terms of the said compromise between the parties the court should pass a decree in terms of the said compromise and the present suit should be disposed of in terms of the said compromise. This claim of the respondent is opposed by learned counsel for the petitioner. According to him, there was no agreement but only an understanding and the document in question only reflected the understanding between the parties. He further contended that as per the terms of this compromise document the disputes between the parties are not resolved by mutual agreement between the parties and, therefore, they will have to be referred to the arbitrator. He further contended that a decree could not be passed in favour of the plaintiff in terms of the said compromise and he also urged that he has also filed an amendment application and the said amendment application should be allowed.

3. There is no dispute over the fact that document dated 12.8.1995 filed on record is signed and executed by both the plaintiff and the defendant. The said document is filed on record by advocates for both the sides jointly on 14.8.1995. Term Nos. 6, 7 and 8 of the said document are necessary for considering the contentions raised on behalf of the petitioner as well as learned advocate for the defendant. Those term Nos. 6 to 8 read as under :

(6) That the parties will settle all the matters as far as possible by mutual discussions and in case it becomes a must, then refer the dispute to the arbitrator as per arbitration clause of the contract. The parties will do their best to settle the dispute by the end of September 1995. In case the parties are unable to resolve any matter/matters by Sept. 30th, 1995, the same will be referred to mutually agreed arbitrator/arbitrators.

(7) That parties agree that ANCL & Co. shall keep alive all the Bank Guarantees, both in respect of retention money and additional mobilisation advance till the matters are finally settled.

(8) That parties agree that the suit No. 1780 of 1995 and 1775A of 1995 pending before the Hon'ble High Court of Delhi will be disposed of in accordance with the terms of this agreement. A copy of this agreement shall be filed in the said proceedings.

4. If the above quoted term No. 8 is seen then it would be quite clear that there is agreement between the parties that this suit as well as suit No. 1785/95 must be disposed of by this court in terms of the said agreement. It must be remembered that this a petition under Section 20 of the Arbitration Act, 1940. Plaintiff had come before the court for seeking appointment of arbitrator and to refer the disputes between the parties to the arbitrator. The above quoted term No. 6 of the agreement shows that the parties have agreed to refer their disputes to the arbitrator in terms of the said document. So what the plaintiff wanted this court to do by passing a decree has been agreed by the parties in para No. 6.

5. No doubt it has been vehemently urged before me by learned counsel for the petitioner that the parties are not able to resolve any matters by September 30, 1995, and, therefore, the disputes between the parties will have to be referred to the arbitrator. In this, document the parties have agreed to certain procedure for appointment of arbitrator and to refer the dispute to him. Therefore, that procedure between the parties must be followed by the parties. It must be also mentioned here that in this petition under Section 20 of the Indian Arbitration Act petitioner has nowhere given as to what are the exact disputes between the parties and on what disputes between the parties the arbitrator must pass his award. There are certain pleadings in para No. 19 and others mentioning that there are certain disputes but it is settled law that when a petition under Section 20 is filed by a party the party must plead as to what are the disputes between the parties and specify the disputes to be referred to the arbitrator for passing the Award. In the instant case plaintiff has nowhere specified the disputes between the parties. He contended before me that various bills of the plaintiff are outstanding and he also contended that the plaintiff's contract has been illegally terminated. But in order to succeed in a petition under Section 20 it is incumbent on a party to mention in that petition as to what is the dispute between the parties on which the arbitrator must pass his award. A vague and general pleading is not sufficient. Therefore, the petition is not tenable and maintainable in law because from the petition itself it is not possible for the court to know what are the disputes on which the arbitrator has to record his findings.

6. In para No. 6 of the mutual terms between the parties the parties have agreed to a procedure for resolving the disputes between them. Therefore, that procedure will have to be followed and if the said procedure is not followed on account of the non-cooperation of the defendant, as has been tried to be urged before me then that would be a separate cause of action for the plaintiff to come before the court. In that case it will be a separate cause of action between the parties because parties have agreed that disputes will be referred to a mutually agreed arbitrator. After filing these terms plaintiff has taken adjournments from time to time and only after he was questioned as to whether he had taken any steps as per the term No. 6 to ask the defendant to refer the disputes to the arbitrator, in the month of December 1995 a notice has been issued to the defendant to refer the disputes to an arbitrator. Now, if the request made by the plaintiff is not accepted by the defendant then the plaintiff would have a separate independent cause of action for seeking appropriate relief under the existing arbitration act to come before the court to get the necessary relief but as there is a voluntarily agreed agreement between the parties for following certain procedure for appointment of arbitrator and as parties have voluntarily agreed to dispose of this suit between the parties, I hold that the present suit will have to be disposed of by mentioning that the terms of agreement between the parties, i.e., the document dated 12.8.1995 will form part of the order of this court, i.e., the decree of this court.

7. Learned counsel for the plaintiff vehemently urged before me that he has filed an application for amendment of this petition under Order VI Rule 17. This application under Order VI Rule 17 of the Code of Civil Procedure is by way of seeking amendment in his main petition in view of the alleged instances which have taken place subsequent to the filing of the petition. But as I have found that the original petition itself is not properly drafted the amendment which is sought by the plaintiff is not going to help him in any way, in the main petition itself the petitioner has not enumerated what are the disputes which are to be referred to the arbitrator so that the arbitrator should record his findings on those disputes and, therefore, these subsequent events, even if incorporated in the petition, will not make his petition good. Therefore, in view of this circumstances, viz., that the main petition itself is defective and that the parties have already entered into an agreement the amendment application filed by the plaintiff will have to be rejected and the same is rejected.

8. Thus, the present suit stands disposed of in terms of the compromise between the parties dated 12.8.1995. The said compromise between the parties by document dated 12.8.1995 shall form part of the order of this court.