Madras High Court
G.Elumalai vs Raichand Daga on 9 June, 2022
Arb.O.P (Com.Div.) No.117 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.06.2022
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
Arb.O.P (Com.Div.) No.117 of 2022
G.Elumalai
S/o.Govindaraj
Proprietor
M/s.GRP Constructions
No.61, Muthuvel Street, Kodambakkam
Chennai-600 021. ... Petitioner
Vs.
1. Raichand Daga
S/o.Mohanlal Daga
2. Pankaj Daga
S/o.Raichand Daga ... Respondents
Arbitration Original Petition filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996, to appoint an Arbitrator to sort out
the issue between the petitioner and the respondents regarding the
outstanding amount of Rs.66,28,797/- along with interest for the
construction work completed by the petitioner as per the agreement dated
01.02.2017.
For Petitioner : Mr.S.Krishnasamy
1/9
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Arb.O.P (Com.Div.) No.117 of 2022
representing Mr.R.Ramachandran
For Respondents : Mr.T.Karunakaran
ORDER
This order will dispose of the captioned 'Arbitration Original Petition'
[hereinafter 'Arb OP' for the sake of convenience and clarity].
2. Proceedings made by this Court in the earlier listings of the
captioned Arb OP on 17.03.2022, 31.03.2022 and 21.04.2022 read as
follows:
Proceedings dated 17.03.2022:
'Captioned 'Arbitration Original Petition' [hereinafter
'Arb OP' for the sake of convenience and clarity] has been
presented in this Court on 20.10.2021 under Section 11 of 'The
Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)'
[hereinafter 'A and C Act' for the sake of convenience and
clarity].
2. Mr.R.Ramachandran, learned counsel for petitioner
who is before this Court submits that captioned Arb OP is
predicated on an 'agreement dated 01.02.2017 and described as
'Construction Agreement' between the petitioner and two
respondents' [hereinafter 'primary contract' for the sake of
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Arb.O.P (Com.Div.) No.117 of 2022
convenience and clarity]. Learned counsel goes on to say that
captioned Arb OP is particularly predicated on clauses 9 and 10
of primary contract which read as follows:
'9. Arbitration Clause
In case of differences of any sort, the client and the
contractor will have the rights to bring in another respectable
entity each, representing each side. This will need to be done
within 7 days of the difference concern before choosing the legal
route by either. In case the matter is not sorted by them then the
2 chosen entity will chose a single authority acceptable to both
sides to settle matters. Only after this a legal recourse needs to
be taken.
10. Legal Course
All legal issues will be address within Chennai
jurisdiction only.'
3. Aforementioned clauses 9 and 10 of primary contract
serve as an arbitration agreement between the sole petitioner
and two respondents is learned counsel's say. To be noted
'arbitration agreement' within the meaning of Section 2(1)(b)
read with Section 7 of A and C Act.
4. Learned counsel for petitioner submits that arbitrable
disputes erupted between petitioner and respondents qua
primary contract as according to the petitioner certain running
bills including bills for work done outside of the agreement on
the basis of instructions were not honoured. Arbitration
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Arb.O.P (Com.Div.) No.117 of 2022
agreement was triggered by issue of notice dated 21.09.2021
and a reply dated 04.10.2021 was sent by respondents saying
that the jurisdictional police have been approached.
5. The above has necessitated the presentation of
captioned Arb OP in this Court with a prayer for appointment of
a sole Arbitrator is learned counsel's say.
6. Prima facie case for issue of notice made out.
7. Issue notice to respondents returnable in a fortnight
i..e, returnable by 31.03.2022. Private notice permitted.
8. List on 31.03.2022.'
Proceedings dated 31.03.2022:
'Read this in conjunction with and in continuation of
earlier proceedings made in the previous listing on 17.03.2022.
2.Mr.R.Ramachandran, learned counsel for the sole
petitioner is before this Court.
3. Mr.T.Karunakaran, learned counsel who is before this
Court submits that he has entered appearance on behalf of both
the respondents and requests for some time to file counter
affidavit as according to him there is serious disputation about
the existence of the arbitration agreement. Learned counsel
submits that there is a Civil Court decree. Learned counsel
requests for time to file counter affidavit and bring it on Board.
Request acceded to.
List three(3) weeks hence. List on 21.04.2022.'
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Arb.O.P (Com.Div.) No.117 of 2022
Proceedings dated 21.04.2022:
'Mr.S.Krishnasamy, learned counsel for
Mr.R.Ramachandran, counsel on record for petitioner and
Mr.T.Karunakaran, learned counsel for the respondents are
before this Court.
2. Read this in conjunction with and in continuation of
earlier proceedings made in the previous listing on 31.03.2022.
3. This Court was informed that counter affidavit along
with typed set of papers has since been filed after favouring the
counsel for petitioner with advance copies. As there is a
contest, this matter has to be heard out.
4. Both sides submit that it would be desirable to have
the matter heard out after summer vacation.
List the matter after summer vacation. List on
09.06.2022.'
3. Aforementioned proceedings are telltale qua the trajectory
captioned matter has taken, the lis in a nutshell and details pertaining to
arbitration agreement. The short forms, abbreviations and short references
used in 17.03.2022 proceedings shall continue to be used in the instant
order also for the sake of convenience and clarity.
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Arb.O.P (Com.Div.) No.117 of 2022
4. In the hearing today, Mr.S.Krishnasamy, learned counsel
representing Mr.R.Ramachandran, counsel on record for petitioner and
Mr.T.Karunakaran, learned counsel for both the respondents are before this
Court.
5. From the submissions made by learned counsel on both sides, more
particularly, from the counter affidavit and typed set of papers filed by the
learned counsel for respondents, it comes to light that a piquant situation
which is a predicament of sorts has arisen in the case on hand. The
respondents 1 and 2 arraying themselves as plaintiffs 1 and 2 respectively
have filed a suit on the Original Side of this Court i.e., C.S.No.633 of 2019
arraying the aforementioned petitioner in the captioned Arb OP as lone
respondent. This suit is inter alia with a prayer for claiming a little over
Rs.1.11 Crores (Rs.1,11,64,469/-) together with interest and further sum of
Rs.25 Lakhs towards damages. It is not necessary to dilate more on this, it
would suffice to say that this suit is predicated on same primary contract and
cause of action is the same arbitrable disputes for which trigger notice was
issued. This suit came to be decreed ex-parte by a Hon'ble single Judge of
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Arb.O.P (Com.Div.) No.117 of 2022
this Court by judgment and decree dated 15.06.2021.
6. Learned counsel for the respondents submits that the sole
defendant in the suit was duly served but did not go before Hon'ble single
Judge and take recourse to Section 8 of A and C Act.
7. On the contrary, learned counsel for the petitioner in the captioned
Arb OP submits that the suit summons were not served on the sole
defendant. This Court deems it appropriate to not to express any opinion or
view on this controversy, owing to the order, which this Court now proposes
to pass. In other words, this controversy is left open to be decided by
Hon'ble single Judge dealing with appropriate roster, if the petitioner in the
captioned Arb OP chooses to go before Hon'ble Judge concerned (by way of
a suitable application).
8. Other than the aforementioned controversy, there is no other
disagreement regarding trajectory the matter on hand has taken. This has
been captured supra. This means that there is an ex-parte decree in favour
of the respondents. This Court is informed that the respondents have also
launched an Execution Petition and the same is pending before this Court. It
is not necessary to go into those details owing to the limited scope of a
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Arb.O.P (Com.Div.) No.117 of 2022
Section 11 legal drill.
9. Therefore, the only proper course to be adopted by the petitioner is
now to go before the Hon'ble Judge dealing with Civil Suit roster and apply
for dislodging the ex-parte decree, after which, the law will take its course
depending on the outcome of the application. This course can be adopted by
the petitioner, if so advised and so desired if the petitioner choses to adopt
this course. Though obvious, for the purpose of specificity, it is made clear
that Hon'ble single Judge dealing with Civil Suit roster will deal with the
application for dislodging the ex-parte decree on its own merits and in
accordance with law uninfluenced by any observation made in this order.
10. The sequitur is, captioned Arb OP being a limited legal drill under
Section 11 of A and C Act is disposed of as closed preserving the rights of
the petitioner in the aforesaid manner leaving open all the questions raised in
the matter. There shall be no order as to costs.
09.06.2022
mk
Index: Yes/no
Internet: Yes
Speaking/non-speaking
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Arb.O.P (Com.Div.) No.117 of 2022
M.SUNDAR.J.,
mk
Arb.O.P (Com.Div.) No.117 of 2022
09.06.2022
https://www.mhc.tn.gov.in/judis
