Kishan Chand Surendra Kumar vs Delhi School Teachers ...
2002 Latest Caselaw 395 Del

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the order dated 17.11.1981 passed in Suit No. 29-A of 1977 by the learned Single Judge. The appellant, M/s Kishan Chand Surendra Kumar moved a petition under Section 20 of the Arbitration Act in which it is incorporated that the respondent gave the contract of development of its land measuring 666 bighas and 17 biswas situated in Karkardooma, Shahdara, Delhi for the purpose of a residential colony. A cheque for Rs. 50,000/- was given to the appellant, but it was dishonoured. Subsequently the respondent paid two cheques of Rs. 5,000/- each to the appellant.

2. On 19.11.1967 the appellant learnt that the respondent had entered into arrangement for development of the same land with another contractor. Under these circumstances the appellant alleged that the respondent had committed breach of agreement dated 18.5.1967 and asserted that the agreement contained an arbitration clause. Under these circumstances the appellant moved a petition under Section 20 of the Arbitration Act for getting the disputes referred to an arbitration.

3. The respondent, the Delhi School Teachers Cooperative House Building Society denied the existence of any agreement with the appellant.

4. Another significant feature of this case is that the petition under Section 20 of the Arbitration was withdrawn by the appellant by moving an application under Order 23, Rule 1 read with Section 151 of Code of Civil Procedure. The respondent had also signed the application. The Court dismissed the petition as withdrawn on 17.10.1968. No permission was, however, sought for filing a fresh petition on the same subject matter.

5. The appellant submitted that what impelled him to withdraw the petition was that an oral agreement was entered into between the parties and according to which the respondent agreed to pay damages to the tune of Rs. 78,000/- or allot the work as already agreed to under the agreement dated 18.5.1967. The appellant further claimed that he had executed some more work and submitted three bills to the extent of Rs. 78,000/- to the respondent. The appellant was paid Rs. 28,000/- under both the agreement. The balance, however, was not paid.

6. A petition under Section 20 of the Arbitration Act was moved for reference of disputes between the parties under both the agreements dated 18.5.1967 and 17.10.1968 to the Arbitrator. The respondent, however, denied existence of both the agreements and also pleaded that the petition is not maintainable as barred by time and did not disclose any cause of action. The Court framed issues on 24.1.1978 and partly recorded the evidence.

7. The respondent moved an application that since the issues were legal and went to the root of the matter, therefore, these issues be tried as preliminary issues.

8. The learned Single Judge after perusing the entire documents on record and hearing the learned counsel for the parties observed that Order 23 Rule 1(4) C.P.C. envisages that where a plaintiff abandons any suit or withdraws a suit or part of a claim without obtaining permission from the Court to institute a fresh suit in respect of the same subject-matter or part of a claim, he shall be precluded from instituting a fresh suit in respect of them. Section 141 of the CPC provides that the procedure provided in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. The Court also observed that Section 20 of the Arbitration Act itself requires the registration of any petition under it as a suit. This petition was also registered as Suit No. 29-A of 1977.

9. It may be pertinent to mention that in the present case the appellant had withdrawn the petition under Section 20 of the Arbitration Act without obtaining permission from the Court to file a fresh one. The learned Single Judge observed that in this case when the appellant shyed away and abandoned his case on the very existence of the main agreement as well as the arbitration clause by withdrawing that petition, he is precluded now to assert that they in fact existed. Order 23, Rule 1(4) prevents him from doing so.

Order 23, Rule 1(4) of CPC reads as under:-

"(4) Where the plaintiff-

(a) abandons any suit or part of claim under Sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."

10. According to the aforesaid provision of law the conclusions arrived at by the learned Single Judge are in consonance with the provisions of law. Their Lordships of the Supreme Court in Hulas Rai Baij Nath v. Firm K.B. Dass and Co. that "The language of Order 23, Rule 1, Sub-rule (1) C.P.C., gives an unqualified right to a plaintiff to withdraw from a suit and if no permission to file a fresh suit is sought under Sub-rule (2) of that Rule, the plaintiff becomes liable for such costs as the Court may award and becomes precluded from instituting any fresh suit in respect of that subject-matter under Sub-rule (3) of that Rule."

11. Regarding the submission of the appellant pertaining to oral agreement of 17.10.1968, the learned Single Judge observed that the said agreement provided for payment of Rs. 78,000/- to him. The damages were specifically quantified and nothing remains for the Arbitrator to adjudicate. The appellant had only to seek recovery of that amount and he can always take appropriate steps to recover the same according to law.

12. The learned Single Judge observed that the petition was barred by time. The petition was filed on 3.1.1977 on the basis of oral agreement dated 17.10.1968 and the last payment was stated to have been made on 30.12.1973. The Court further observed that it was not shown that any payment was made within three years of 17.10.1968 to constitute as part payment for extension of limitation under Section 19 of the Limitation Act. Learned Single Judge correctly interpreted the provisions of law and arrived at the correct conclusion that the petition was manifestly barred by time.

13. The learned Single Judge dismissed the petition and upheld all the three preliminary objections raised by the respondent.

14. We have carefully examined the impugned judgment. In our considered opinion, the learned Single Judge's findings on all three preliminary objections are based on correct interpretation of the provisions of law.

15. No interference is called for. The appeal is accordingly dismissed. The parties are directed to bear their own costs.