Delhi High Court
Bhushan Steel vs Singapore International ... on 30 November, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No.13434/2010 in CS (OS) No.1392/2009
% Judgment decided on : 30.11.2010
Bhushan Steel ......Plaintiff
Through : Mr. A.S. Chandhiok, Sr. Advocate with
Ms. Ranjana Gawai, Mr Abhishek
Rao, Ms. Vasubha Sen & Mr Sriharsh
Bundela, Advocates.
Versus
Singapore International Arbitration Centre & Anr. .....Defendants
Through : Mr Sandeep Sethi, Sr. Advocate with
Mr. Piyush Sharma & Mr Aditya Jain,
Advocates.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MANMOHAN SINGH, J.
1. This order shall dispose of the application filed by the
applicant/ defendant in the suit seeking correction in the order passed by
this court on 04.06.2010 in IA No.11355/2009 filed by the defendant
No.2 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.
2. The main premise of the application is that the said order
passed by this court dated 04.06.2010 needs to be corrected in as much as
in para 47 where in this court observed that the parties by the agreement
have excluded the provisions of the Indian Arbitration and Conciliation
Act. The said observation in para 47 as stood in the order are recorded as
under:
"47. In the present case, it is evident that the parties
by agreement have expressly and impliedly excluded
the provisions of the Arbitration and Conciliation Act,
1996. Thus, the suit is not maintainable."
3. Learned senior counsel Mr. Sandeep Sethi appearing on behalf
of the applicant/defendant submitted that the observations made in para
47 has to be qualified by the word "not" and the appropriately the said
finding may be corrected as that the parties by the agreement have not
excluded the provisions of the Indian Arbitration law. This as per Mr.
Sethi has to be corrected as the finding that the parties have excluded the
Indian Arbitration Act would mean that the dispute is not arbitrable which
is not consistent with the main finding of rejecting the plaint on the
ground of order 7 Rule 11 (d) which is that the suit is barred by the law of
arbitration.
4. Per Contra Mr. Chandiok, Learned counsel for the non
applicant opposed the said correction petition by urging that the
petitioner/application cannot seek review under the garb of the correction.
He submitted that there is a time limitation for seeking the review which
has elapsed.
5. Further Mr. Chandiok, learned Senior counsel and ASG
contended that the order dated 04.06.2010 passed by this court observes
about international commercial arbitration which is the subject matter in
which the present dispute falls. Thus, he states that the finding in the para
47 needs no correction as the parties have excluded the provisions of
Arbitration law by way of the agreement and thus no correction is
required.
6. Before adverting to my discussion, it is noticeable that the
respondent/ non applicant has preferred an appeal before this division
bench of this court wherein the applicant has submitted about the
clarification which is required in the matter. It is after the order passed by
the Division Bench, this application was filed.
7. I have gone through the submissions of the learned counsel for
the parties and have given careful consideration to the same. I have also
gone through the order passed on 04.06.2010 by me.
8. I wish to say that the order passed on 04.06.2010 in IA
No.11355/2009 rejects the suit of the plaintiff on the ground that the suit
is barred by the law of arbitration as the same is arbitrable in nature in
view of section 5 of the Indian Arbitration and Conciliation act. The order
while arriving at this finding of rejection of plaint discusses two aspects
which are highlighted as under:
a) Applicability of Part 1 provisions more specifically
section 5 on Part 2 arbitrations of the Act - wherein
this court has held that section 5 would be applicable
to Part 2 arbitration also .
b) The impact of section 5 on the civil proceedings- This
court observed that section 5 limits the extent of
court's intervention in the disputes which are
arbitrable in nature.
9. In consequence, the finding is that the suit is barred in view of
section 5 of the Act as the suit is expressly barred and thus the bar
envisaged under section 5 would operate. The plaint is liable to be
rejected under order 7 Rule 11 (d).
10. In view of this finding, it needs to be clarified that it is only
operation of the provisions of section 5 of the Indian Arbitration and
Conciliation Act, 1996, the suit is held to be barred by the said law. Thus,
under no circumstances, it can be said that the parties by an agreement
have excluded provisions of the Indian arbitration Act. Rather, the said
finding needs to be corrected by adding the word not the same which
would render the meaning to the same which is in consonance with the
main finding. Thus, the correct finding ought to be that the parties by an
agreement have not express or impliedly excluded the provisions of the
Arbitration and Conciliation Act, 1996 which in other words would mean
that the said provisions are applicable and by operation of the same ; in
consequence the suit is barred.
11. Accordingly, the application filed by the applicant is allowed
and the finding in para 47 is corrected as it was a clerical mistake in the
order. The order is modified to the extent of adding the word "not" in
the same. The corrected finding would read as under:
"47. In the present case, it is evident that the parties
by and agreement have not expressly and impliedly
excluded the provisions of the Arbitration and
Conciliation Act, 1996. Thus, the suit is not
maintainable."
12. The application is accordingly disposed of.
MANMOHAN SINGH, J.
NOVEMBER 30, 2010
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