Amin Chand Mehta vs Kamal Kishore Kalra
2021 Latest Caselaw 5624 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                    ON THE 8TH DAY OF DECEMBER, 2021

                                     BEFORE

                 HON'BLE MR. JUSTICE SANDEEP SHARMA




                                                                    .

                           CIVIL SUIT NO. 10 OF 2019

    Between:-





    1.     AMIN CHAND MEHTA
           S/O LATE SHRI DEEP RAM,
           RESIDENT OF DEEP KUNJ, KASUMPTI,
           SHIMLA, SHIMLA-171009 (H.P.)





    2.     MANISH MEHTA
           S/O SHRI AMIN CHAND MEHTA,
           RESIDENT OF DEEP KUNJ, KASUMPTI,
           SHIMLA, SHIMLA-171009 (H.P.)

    3.     JATIN MEHTA
           S/O SHRI AMIN CHAND MEHTA,

           RESIDENT OF DEEP KUNJ, KASUMPTI,
           SHIMLA, SHIMLA-171009 (H.P.)
                                                                  ... PLAINTIFFS
    (BY MR. Y.P. SOOD, ADVOCATE)


    AND

    KAMAL KISHORE KALRA
    S/O LATE SHRI G.L. KALRA,




    RESIDENT OF MS-2/1, ATUL GROOVE,
    OPPOSITE TOLSTOY MARG, CONNAUGHT PLACE,





    NEW DELHI-110008,
    PRESENTLY A-15, SECTOR-II, NEW SHIMLA
    AND OFFICE K-3 BENQUIT PARVATI COMPLEX,
    PANTHAGHATI, SHIMLA-171009 (H.P.)





                                                                  .. DEFENDANT

    (BY MR. NEERAJ GUPTA, SENIOR ADVOCATE
    WITH MS. RINKI KASHMIRI, ADVOCATE)
    Whether approved for reporting: .

     This suit coming on for orders this day, the court delivered the following:

                               J U D G M E N T

OMP No. 484 of 2021 By way of instant application filed under S. 8 of Arbitration

and Conciliation Act [as amended by Arbitration and Conciliation

(Amendment) Act 2015] and (No.3 of 2016) read with Order VIII rule 1(3)

.

and Ss. 148 and 151 CPC, prayer has been made on behalf of the

defendant to refer the matter to arbitration under the provisions of the

Arbitration and Conciliation Act, 1996. It has been averred in the

application that the suit having been filed by plaintiffs is not maintainable

on account of arbitration clause in the agreements dated 7.11.2006

(Annexure D1, D2 and D3), wherein specific provision has been made

under Clause 23 to refer the matter to arbitration, in the event of dispute, if

any, inter se parties, in connection with the agreement(s).

2. Reply to the application stands filed on behalf of plaintiffs, wherein

they have admitted the factum with regard to agreement(s) as have been

taken note herein above, as well as arbitration clause, whereby matter is

required to be referred to arbitration at the first instance.

3. Mr. Y.P. Sood, learned counsel for the plaintiffs, while fairly

admitting factum with regard to existence of arbitration clause in the

agreement(s) which is sought to be enforced by way of Civil Suit No. 10 of

2019, states that since Clause 24 of the agreement(s) speaks that an

arbitrator would be appointed with the consent of parties, this court, while

accepting the prayer made in the application, may appoint an arbitrator,

so that no further delay is caused.

4. Prayer made on behalf of the plaintiffs, has been seriously

opposed by learned counsel for the defendant, who states that this court,

while adjudicating application under S.8 of the Act ibid, has no power to

appoint an arbitrator, rather, it can only refer the matter to the arbitration

and arbitrator, if any, can be appointed by the competent court of law

under S.11 of the Act ibid. In support of his aforesaid claim, he placed

reliance upon judgment of Hon'ble Apex Court in State of Goa v.

.

Praveen Enterprises, AIR 2011 SC 3814, wherein Hon'ble Apex Court

has held that under S. 8 of the Act ibid, judicial authority can refer parties

to arbitration but has no power to appoint an arbitrator. Paragraph-12 of

the judgment (supra) is reproduced herein below:

"12. `Reference to arbitration' can be in respect of reference of disputes

between the parties to arbitration, or may simply mean referring the parties to arbitration. Section 8 of the Act is an example of referring the parties to arbitration. While section 11 contemplates appointment of arbitrator [vide sub-sections (4), (5) and (9)] or taking necessary measure as per the

appointment procedure under the arbitration agreement [vide sub-section

(6)], section 8 of the Act does not provide for appointment of an arbitrator, nor referring of any disputes to arbitration, but merely requires the judicial authority before whom an action is brought in a matter in regard to which there is an arbitration agreement, to refer the parties to arbitration. When the

judicial authority finds that the subject matter of the suit is covered by a valid arbitration agreement between the parties to the suit, it will refer the parties to arbitration, by refusing to decide the action brought before it and leaving it

to the parties to have recourse to their remedies by arbitration."

5. Consequently in view of above, this court finds no impediment in

accepting the present application and the same is allowed. Matter is

referred to arbitration in terms of Clause 24 of the agreement(s) as have

been taken note above.

Civil Suit No. 10 of 2019

6. In view of order passed in OMP No. 484 of 2021, nothing remains

to be adjudicated in the present suit at this juncture.

7. Faced with the aforesaid, learned Counsel appearing for the

plaintiffs seeks permission to withdraw the suit.

8. The suit is disposed of as withdrawn alongwith all pending

applications. Interim directions, if any, stand vacated. Plaintiffs shall be

.

entitled to refund of court fee in accordance with law.

                                              (Sandeep Sharma)
                                                   Judge
         December 8, 2021
             (Vikrant)




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