Ashok Kumar Bagga vs Ashok Kumar Arora & Anr.
2010 Latest Caselaw 2222 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    CM(M) 1319/2008

                              Date of Decision: April 27, 2010

       ASHOK KUMAR BAGGA                               ..... Petitioner
                    Through:             Mr.Amit Singh, Advocate
                                         with Petitioner in person.
                     versus

       ASHOK KUMAR ARORA AND ANR        ..... Respondents
                     Through: Mr.Pawan Singh, Advocate
                              with Respondent No. 1 in
                              person.
       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)      Whether reporters of local paper may be
              allowed to see the judgment?
     (2)      To be referred to the reporter or not?            Yes
     (3)      Whether the judgment should be reported
              in the Digest ?                                   Yes

                         JUDGMENT

ARUNA SURESH, J. (Oral)

1. A suit for permanent and mandatory injunction filed by

respondent No.1 against the petitioner is pending adjudication in the

Trial Court. In the said case, petitioner filed an application under

Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter

referred to as „the Act‟), which was dismissed by the Trial Court vide

order dated 2nd February, 2008 with the observations that petitioner

had never pressed his objection under Section 8 of the Act and he

proceeded with and participated in the trial. Despite the fact that an

objection was taken in the written statement, Trial Court was of the

opinion that defendant No.2 had no right to invoke the arbitration

clause.

2. Thereafter petitioner filed another application under

Section 89 of the Code of Civil Procedure (hereinafter referred to as

„CPC‟) for referring the disputes inter se the parties to arbitration.

This application was dismissed by the Trial Court vide impugned

order dated 17th July, 2008 with following observation:-

" I have given my thoughtful consideration. On the last date of hearing a similar application seeking similar relief was dismissed. The present application is based on same grounds as taken in the previous application U/S 8 and nothing new has been pleaded. The case had been passed over for cross-examination of PW-1 but in turn the present application has been moved. There are no merits in the instant application as the issue has already been decided vide the last order and the same is dismissed."

3. Order of the Trial Court dated 2 nd June, 2008 was not

challenged by the petitioner and therefore, it has attained finality. By

way of an application under Section 89 CPC, petitioner sought

similar relief by circumventing the facts and circumstances with a

view to get relief of reference of disputes to arbitration.

4. Section 89 CPC speaks of settlement of disputes outside

the court i.e. Alternate Dispute Resolution. Arbitration is one of

them. Fact remains, when a reference is made to arbitration for

redressal, arbitration has to be conducted by the Arbitrator within the

provisions of law contained in the Arbitration and Conciliation Act.

The said Act pre-supposes an arbitration agreement inter se the

parties for reference of their disputes within the meaning of

arbitration clause contained in the agreement. Therefore,

consideration of the Arbitral Tribunal and its procedure has to be in

accordance with the said Act.

5. After having failed in his attempt to get the proceedings

stayed under Section 8 of the Act, petitioner was debarred from

invoking provisions of Section 89 CPC for referring the disputes to

arbitration. Under these circumstances, I find no infirmity or

illegality in the impugned order of the Trial Court.

6. Learned counsel for the petitioner has argued that Trial

Court vide impugned order, also closed cross-examination of PW-1

and did not permit the petitioner to cross-examine him. I am told by

counsel for the respondent that cross-examination of PW-1; Ashok

Kumar Arora (respondent No.1) prior to cross-examination of the

petitioner was subsequently allowed by the Trial Court. However,

petitioner has failed to cross-examine Ashok Kumar Arora till date.

There is no dispute that order of the Trial Court permitting petitioner

to cross-examine Ashok Kumar Arora was challenged by the

petitioner himself by way of a revision petition and the said petition

has been dismissed with costs.

7. Under these circumstances, when petitioner is misusing

the process of law, he deserves to suffer costs.

8. Hence, petition is hereby dismissed with costs of

Rs.5,000/- to be deposited with Delhi High Court Legal Services

Authority within a period of four weeks.

ARUNA SURESH (JUDGE)

APRIL 27, 2010 sb