Tata Finance Ltd. vs Sudhir Kumar Sharma
2006 Latest Caselaw 35 Del

JUDGMENT

R.S. Sodhi, J.

CM293/2006

Page 281

1. Sufficient cause has been shown. The matter is restored to its original number and file. Application is disposed of.

C.M.(M) 2451/05 & C.M. 14439/05

2. CM(M)2451/2005 is directed against the order of the Additional District Judge, Delhi in S.No.33/02 whereby the learned Judge vide his order dated 31.5.05 allowed the petition of the respondent for appointment of an Arbitrator.

Page 282

3. The facts of the case as have been noted by the learned Additional District Judge are -

Briefly stated the facts of the case are that the petitioner had purchased one Tata Sumo vehicle from the respondent and had got financed vide Higher Purchase Contract No : 265904 dated 31.12.1998 for a sum of Rs. 3,80,206/- and executed a Hire Purchase Agreement. The petitioner had also paid a sum of Rs.1,16,561/- to the respondent in the shape of bank draft and the total cost of the said vehicle comes to Rs.4,06,583/-. As per the Hire Purchase Agreement, the required to pay the finance amount in 36 installments of Rs.10,562/- each per month.

According to the petitioner, the said vehicle No : HR 26H-6154 Tata Sumo was stolen by some persons and an FIR bearing No : 609/2001 dated 23.07.2001 was registered with the Police Station Dabri, New Delhi and the said vehicle is still not traceable. Since the vehicle was insured and the petitioner claimed from the Insurance company about the said vehicle but still the Insurance Company has not given any claim. Although the claim has already been sanctioned by the company but the company officials have asked the petitioner to pay the claim amount until and unless the petitioner submit the No Objection Certificate from the respondent company. The petitioner on so many occasions visited the respondent company but they linger on the matter on one or the other pretext and finding no alternative. The petitioner served a legal notice dated 10.07.2002 to the respondent. Despite service of the legal notice, the respondent has failed to give the No Objection Certificate to the petitioner and thereafter the petitioner filed a suit for mandatory injunction against the respondent, which was dismissed on technical grounds. The petitioner thereafter filed an appeal against that order which was disposed of by the court of Sh Daya Prakash, Ld. Senior Civil Judge, Delhi on 02.02.2005 directing that there is an arbitration agreement between the parties and the suit of the petitioner under Section 8 of Arbitration and Conciliation Act and the Civil Court has no jurisdiction.

As per the petitioner, he had paid the entire agreed amount to the respondent as per Hire Purchase Agreement which is evident from the statement of account submitted by the respondent on 11.01.2002, wherein it is mentioned that the total installed are 36, received 33 installments and due 3 and the remaining due 3 installments have already paid by the petitioner to the respondent vide receipt No. AY-62995 dated 08.05.2002 amounting to Rs.31,660/-. Thus, the petitioner has filed the present petition for appointment of the Arbitrator to adjudicate upon the dispute between the parties.

The respondent has filed reply to it raising preliminary objections inter alia on the grounds that according to the Arbitration and Conciliation Act, 1996, the application under Section 8 is to be accompanied by the copy of the agreement which the petitioner has failed to file. The present application, under Section 8 of the said Act can be moved in the matter which is pending before the court and is the subject matter of the arbitration agreement. Thus, the court under Section 8 of the Arbitration and Conciliation Act cannot appoint the arbitrator. For this purpose an Page 283 application under Section 11 of the Arbitration and Conciliation Act, 1996 has to be moved. Under Clause 27 of the Hire Purchase Agreement Dated 31.12.1998 executed between the parties, the Mumbai Court alone shall have exclusive jurisdiction in respect of any matter relating to the agreement. The petitioner has not come with clean hands and has suppressed material facts intentionally before this court with a sole motive to withhold the balance amount due towards respondent. Since the suit earlier filed by the petitioner for mandatory injunction was dismissed and again the appeal was also dismissed. On merits, it is denied that the copy of the agreement is enclosed with the petition. It is also denied that for want of knowledge to the extent that the vehicle was stolen and FIR bearing No. 609/2001 dated 23.07.01. Hence, this court has no jurisdiction to entertain the present petition.

4. It is contended by the counsel for the petitioner that the suit of the respondent having been dismissed as also the appeal, no petition lies under Section 8 of the Arbitration Act. He submits that the procedure to be adopted should have been as prescribed under Section 11 of the Arbitration Act. Counsel for the respondent, on the other hand, contends that parties were litigating over the same issue. Previously, the Civil Court declined jurisdiction because there was an arbitration clause as was held by the appellate court. It was faced with this consequences that the respondent moved an application under Section 8 which was S.No.33/05. The aforesaid suit/petition was allowed and an Arbitrator was appointed after notice to the petitioner. The petitioner did not exercise his option to appoint an Arbitrator and, therefore, the court in his wisdom has appointed one. He submits that there is absolutely nothing wrong with the order.

5. I have heard the counsel for the parties and I have gone through the judgment under challenge. It appears to me that quibbling over Sections 8 and 11 of the Act, is immaterial in the circumstances of the present case. Since the parties were on notice, and the petitioner was not appointing an Arbitrator the course adopted by the Additional District Judge, to my mind, was fair, Just and equitable.

6. I find no merits in the case. Dismissed.