Himachal Pradesh High Court
Chand vs Transport Finance Company Ltd And ... on 26 August, 2021
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 26th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
REGULAR SECOND APPEAL No. 416 OF 2018
Between:-
GAGAN KUMAR, SON OF SH. PREM
CHAND, R/O VILLAGE NAYA GAON,
MAJRA, TEHSIL POANTA SAHIB,
DISTRICT SIRMAUR, HIMACHAL
PRADESH.
..........APPELLANT
(BY SH. KARAN SINGH KANWAR, ADVOCATE)
AND
1. SHIRI RAM TRANSPORT FINANCE
COMPANY LTD. 101, 105, IST
FLOOR, b WING SHIV CHAMBERS,
SECTOR 11, CBD BELAPUR, NAVI
MUMBAI-400614.
2. SHIRI RAM TRANSPORT FINANCE
COMPANY LTD. THROUGH ITS
BRANCH MANAGER, Y POINT
POANTA SAHIB, DISTRICT
SIRMAUR, H.P.
........RESPONDENTS
(BY MR. ASHWANI KAUNDAL, ADVOCATE)
___________________________________________________________
RESERVED ON: 29.07.2021
Whether approved for reporting: Yes
This appeal coming on for pronouncement of judgment
this day, Hon'ble Mr. Ajay Mohan Goel, delivered the following:-
::: Downloaded on - 31/01/2022 22:57:49 :::CIS
2
JUDGMENT
Brief facts necessary for the adjudication of the present
.
appeal are as under:-
The appellant herein filed a suit for permanent
injunction for restraining the defendants from taking possession of
of vehicle bearing registration No. HP17B-5241 LP Truck 1616
itself or through its agents before the Court of learned Civil Judge
(Jr. Divn.) Court No. 2, Poanta Sahib, District Sirmaur, H.P., i.e.
Civil Suit No. 14/2015, titled as Gagan Kumar vs. Shiri Ram
Transport Finance Company Ltd and another. In the said
proceedings, the defendants filed an application under Section 8 of
the Arbitration and Conciliation Act, 1996 (hereinafter to be
referred as the '1996 Act' for convenience) for referring the matter
to arbitration on the ground that the contract entered into between
the plaintiff and the defendants contained an arbitration clause.
This application was decided by learned Trial Court vide order
dated 18.06.2016 by allowing the same and directing the parties to
approach the appropriate forum for redressal of their grievance
and by dismissing the suit as being not maintainable in the light of
the arbitration clause.
2. Feeling aggrieved, the plaintiff filed an appeal under
Section 96 of the Code of Civil Procedure. This appeal was
dismissed by the Court of learned Additional District Judge,
Sirmaur at Nahan, i.e. Civil Appeal No. 111-N/13 of 2016, titled as
Shri Gagan Kumar vs. Shiri Ram Transport Finance Company Ltd
.
and another, on 28.07.2017, by holding that in view of the
provisions of Arbitration and Conciliation Act, an order passed by
a Court dismissing the plaint for want of jurisdiction on the
ground of existence of arbitration clause between the parties,
cannot be appealed against.
3. Feeling aggrieved, the appellant filed the present
appeal.
4. I have heard learned Counsel for the parties and also
gone through the order passed by learned Trial Court as well as
the judgment passed by the learned Appellate Court.
5. In the considered view of the Court, the findings
returned by learned first Appellate Court that the order passed by
learned Trial Court was not assailable by way of an appeal suffer
from no infirmity. The scheme of the Arbitration and Conciliation
Act 1996 is that in terms of the provisions of Section 8 therein, a
judicial authority before which an action is brought in a matter,
which is subject of an arbitration agreement shall refer the same
for arbitration, if a party to the arbitration agreement or any
person claiming through or under him, so applies not later than
the date of submitting his first statement for the matter to be
referred to arbitration unless the judicial authority finds that
prima facie no valid agreement exists. Section 37 of the 1996 Act
deals with appeals. Sub section 1(a) of Section 37 provides that an
.
appeal shall lie under Section 37 of the 1996 Act from an order
refusing to refer the order for arbitration under Section 8.
However, there is no provision in Section 37 to the effect that an
order referring the parties to the arbitration is appealable. In these
circumstances, this Court is of the considered view, that once a
judicial authority, in terms of the provisions of Section 8 of the
Act, refers the parties to arbitration, then the aggrieved party, if
any, does not has a right to file an appeal but it has to raise the
objection of issue not being subject matter of arbitration before the
learned Arbitrator. Hon'ble Supreme Court of India in Chintels
India Ltd. vs. Bhayana Builders Pvt. Ltd., Civil Appeal No. 4028
of 2020, decided on 11th February, 2021, has been pleased to hold
that the "effect doctrine" referred to in Essar Constructions vs. N.P.
Rama Krishna Reddy, (2000) 6 SCC 94, is statutorily inbuilt in
Section 37 of the 1996 Act and where a party is referred to
arbitration under Section 8, no appeal lies. Hon'ble Court has been
pleased to further hold that this is for the reasons that effect of
such order is that the parties must go to arbitration, it being left to
the learned Arbitrator to decide preliminary points under Section
16 of the Act, which then become the subject matter of appeal
under Section 37(2)(a) or the subject matter of grounds to set aside
under Section 34 of the Act 1996 depending upon whether the
preliminary points are accepted or rejected by the Arbitrator.
.
6. In this view of the matter, this Court does not finds any
infirmity with the judgment passed by learned first Appellate
Court, and accordingly, this appeal, being devoid of any merit, is
dismissed at the stage of admission itself. No order as to costs.
Pending miscellaneous application(s), if any also stand disposed of
accordingly.
(Ajay Mohan Goel)
r Judge
August 26, 2021
(narender
