Delhi High Court
M/S Abhijeet Infra Pvt Ltd vs M/S Milstones Switchgears Pvt Ltd on 5 February, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 165/2014 & CM 19143/2014 (stay)
% Reserved on: 2nd February, 2015
Decided on: 5th February, 2015
M/S ABHIJEET INFRA PVT LTD ..... Petitioner
Through Mr. N.K. Kantawala, Mr. Harsh
Makhija, Advs.
versus
M/S MILSTONES SWITCHGEARS PVT LTD ..... Respondent
Through Mr. Chandra Shekhar Yadav, Adv.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. The petitioner challenges the order dated 29th September, 2014
whereby his application under Section 8 of the Arbitration and Conciliation
Act was dismissed.
2. The respondent/plaintiff filed a suit before the Civil Judge seeking
recovery for a sum of `78,793/- along with pendentelite and future interest.
In the suit, the respondent pleaded that the plaintiff company which was
engaged in the business of manufacture, supply and installation of electrical
equipments was approached by the petitioner/defendant for supply of Boiler
MCC panel and miscellaneous lighting distribution board to which the
respondent/plaintiff agreed. In pursuance thereof the petitioner/defendant
placed an order for supply of said material vide their purchase orders No.
4800001160 and 4800001855 dated 6th January, 2009 and dated 11th June,
2009 respectively. In response to the said purchase orders placed by the
petitioner, the respondent supplied the material at their site at power plant
(CIAL Durgapur) 6, S.I.A., Digaul Avenue, Durgapur, Distt. Burdwan, West
Bengal and raised the following invoices:
S.No. Bill No. Date Amount (`)
1 684 31.03.2009 11,70,293/-
2 237 10.10.2009 5,52,024/-
3 249 27.10.2009 1,65,607/-
TOTAL 18,58,924/-
3. It was further stated in the plaint that the aforesaid supplies were
against issuance of C-Form by the petitioner, however the petitioner has till
date not issued C-Form to the respondent despite repeated requests. Thus,
on non-account of supply of C-Forms the plaintiffs/respondent are liable to
pay a sum of `37,018/- being the differential tax and the penalty of `30,281/-
to the sales tax department. The defendant/petitioner are therefore liable to
pay a sum of ` 67,299/- along with interest @ 24% per annum on the
aforesaid amount.
4. On summons being issued the petitioner/defendant entered appearance
and filed an application under Section 8 of the Arbitration and Conciliation
Act (in short hereinafter referred to as the Act). In the application it was
stated that the parties entered into an agreement dated 6 th January, 2009 and
the contract contained an arbitration clause and the same is reproduced
below "other terms and conditions" that if there is any dispute arising
between the parties with respect to contract then they will have to resolve the
same through arbitration.
5. The learned Civil Judge dismissed the application of the petitioner
under Section 8 of the Act on the ground that along with the application
under Section 8 of the Act the original agreement or a certified copy thereof
is required to be filed, however the petitioner has not filed any such
agreement, rather relies upon certain purchase orders which allegedly
contain the arbitration Clause. Further these documents do not bear the
signature of any official/AR of the plaintiff/respondent company and they
are the documents of the petitioner/defendant. Thus it cannot be said that
their existed an agreement between the parties.
6. I have heard learned counsel for the parties. It is trite law that
purchase orders are also written contracts between the parties and the
respondent/plaintiff cannot get away with the same by saying that it does not
bear the signature of the authorized representative or any person from the
plaintiff/respondent. In response to the purchase order the
plaintiff/respondent has admittedly supplied goods and thus a valid contract
had been entered between the parties.
7. Two purchase orders have been placed on record one dated 6 th
January, 2009 and the other dated 11th June, 2009. Learned counsel for the
petitioner has not been able to show any arbitration Clause in the purchase
order dated 6th January, 2009. In the purchase order dated 11 th June, 2009
below the "other terms and conditions" it is mentioned "dispute if any,
whether commercial or otherwise shall be settled amicably between the
parties. If the dispute is not resolved amicably then it shall be finally
decided by referring it to arbitration, which shall be subject to the Rules of
Arbitration and provisions of the Arbitration & Conciliation Act 1996. All
the disputes shall be resolved/settled under jurisdiction of West Bengal
only."
8. Present is a clear case of misjoinder of causes of action and thus the
Court is required to separate the two causes of action. Order II Rule 6
provides as under:
"6. Power of Court to order separate trials.-Where it
appears to the Court that the joinder of causes of action in one
suit may embarrass or delay the trial or is otherwise
inconvenient, the Court may order separate trials or make such
other order as may be expedient in the interests of justice."
9. Since with regard to purchase order/agreement dated 11 th June, 2009
the parties are bound by the arbitration agreement, the dispute relating to the
recovery of money, differential tax penalty and interest pendentelite and
future in terms of C-Form are required to be decided by the arbitrator and in
regard to purchase order dated 6th January, 2009 the disputes will have to be
adjudicated in a civil suit.
10. Thus, the impugned order is set aside. The learned Civil Judge is
directed to permit the respondent/petitioner to file an amended plaint with
regard to cause of action relating to purchase order dated 6 th January, 2009
for recovery of money, differential tax, penalty, interest pendentelite and
future and in relation to the purchase order dated 11th June, 2009 relating to
recovery of money, differential tax, penalty, interest pendentelite and future,
the respondent/plaintiff will be at liberty to proceed for arbitration in
accordance with arbitration Clause.
11. Petition and application are disposed of accordingly.
(MUKTA GUPTA)
JUDGE
FEBRUARY 05, 2015
'ga'
