Madras High Court
R.Nallathambi vs S.P.S.Feeds By Its on 28 September, 2021
C.M.A.No.334 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
C.M.A.No.334 of 2009
1. R.Nallathambi
2. K.Singaraj
3. K.Thangamuthu
4. K.Manickam
5. K.K.Kandasamy
6. A.K.Palanivel
7. P.Ponsingh .. Appellants
Vs.
1. S.P.S.Feeds by its
Proprietor S.Palani,
D.No.115-A, Paramathi Road,
S.P.Pudur, Namakkal.
2. Poorani Feeds (P) Ltd.,
by its Director Nirmala,
D.No.6/1189-A, Opp.Power Station,
Paramthi Road, Namakkal Town.
3. Nithiya .. Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 37 of the
Arbitration and Conciliation Act, 1996 seeking to set aside the fair and
decretal order dated 30.10.2008, passed in Arb.O.P.No.25 of 2006 on the file
of the Principal District Judge, (Motor Vehicle Accident Claims Tribunal),
Namakkal.
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C.M.A.No.334 of 2009
For Appellants : Ms.S.Aiyshwarya
for M/s.Sarvabhauman Associates
For Respondent 1 : Mr.R.Bharanidharan
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JUDGMENT
(The case has been heard through video conference)
This appeal has been filed under Section 37 of the Arbitration and
Conciliation Act, 1996 challenging the order dated 30.10.2008, passed by
the learned Principal District Judge, Namakkal in A.O.P.No.25 of 2006
under Section 34 of the Arbitration and Conciliation Act, under which, the
learned Principal District Judge has set aside the arbitral award dated
18.03.2006, passed in favour of the appellants on the ground that there is no
arbitration agreement between the parties to the dispute and no notice of
arbitration was given to the respondents prior to the commencement of the
arbitration.
2. This Court has perused the arbitral award dated 18.03.2006. As
seen from the arbitral award, admittedly, no notice of arbitration was given
to the respondents prior to the passing of the arbitral award, which was the
subject matter of challenge in A.O.P.No.25 of 2006, filed by the first
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C.M.A.No.334 of 2009
respondent under Section 34 of the Arbitration and Conciliation Act.
Further, as seen from the arbitral award, there was no arbitration agreement
in writing between the parties. Under Section 7 of the Arbitration and
Conciliation Act, it is clear that any arbitration agreement must be in writing.
Section 7 of the Act reads as follows:
"7. Arbitration agreement.— (1) In this Part,
“arbitration agreement” means an agreement by
the parties to submit to arbitration all or certain
disputes which have arisen or which may arise
between them in respect of a defined legal
relationship, whether contractual or not.
(2) An arbitration agreement may be in the
form of an arbitration clause in a contract or in the
form of a separate agreement.
(3) An arbitration agreement shall be in
writing.
(4) An arbitration agreement is in writing if it
is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or
other means of telecommunication including
communication through electronic means which
provide a record of the agreement; or
(c) an exchange of statements of claim and
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C.M.A.No.334 of 2009
defence in which the existence of the agreement is
alleged by one party and not denied by the other.
(5) The reference in a contract to a document
containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing
and the reference is such as to make that arbitration
clause part of the contract."
3. The learned Principal District Judge has correctly considered the
arbitral award and has correctly observed that there is no arbitration
agreement between the parties and there is no notice of arbitration given to
the respondents by the Arbitration Tribunal before the passing of the arbtiral
award in favour of the appellants. The relevant portion of the arbitral award
reads as follows:
"ACCEPTANCE:
Both the parties had unconditionally
accepted for Local Arbitration.
Both the parties had accepted the above
named Arbitrators."
4. As seen from the arbitral award, there is no arbitral agreement in
writing between the parties to the dispute. Even though the arbitral award
states that the parties have unconditionally accepted the local arbitration, the
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C.M.A.No.334 of 2009
arbitration agreement in writing is admittedly not there. When the
respondents have categorically denied the existence of any arbitral
agreement between the parties and they deny acquiescence to the jurisdiction
of the Arbitration Tribunal, it is clear that there was no arbitration agreement
in writing between the parties. Section 7 of the Arbitration and Conciliation
Act has not been complied with and hence the learned Principal District
Judge under the impugned order dated 30.10.2008, passed in A.O.P.No.25 of
2006 has rightly set aside the arbitral award dated 18.03.2006, passed against
the first respondent.
5. During the course of his arguments, the learned counsel appearing
for the first respondent would submit that subsequent to the passing of the
impugned order, the first respondent company has also filed a suit for
declaration against the appellants that no money is due and payable by them
to the appellants. The said suit has also been decreed in their favour on
27.06.2011 in O.S.No.592 of 2006, on the file of the learned Principal
District Munsif, Namakkal.
6. After taking into consideration the aforementioned factors, this
Court does not find any merit in the appeal filed by the appellants under
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C.M.A.No.334 of 2009
Section 37 of the Arbitration and Conciliation Act.
7. In the result, this appeal is dismissed and the impugned order passed
by the learned Principal District Judge, Namakkal is confirmed. No costs.
28.09.2021
Index : Yes / No
kk
To
1. The Principal District Judge,
Namakkal
2. The Section Officer,
VR Section, High Court, Madras.
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C.M.A.No.334 of 2009
ABDUL QUDDHOSE, J.
kk
C.M.A.No.334 of 2009
28.09.2021
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