Telangana High Court
M/S Shree Ganesh Auto Finance vs Mr. Anant Chevan on 24 January, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
C.M.A.No. 366 OF 2024
JUDGMENT:
Parties will hitherto be referred to as they are
arrayed in the main suit.
2. Appellant is defendant in O.S. No. 2035 of 2022
filed by respondent- plaintiff on the file of the X Junior Civil
Judge, City Civil Courts at Hyderabad for specific performance
and for recovery of excess money paid under it. Therein,
defendant had taken out I.A.No. 881 of 2022 under Section 8 of
the Arbitration and Conciliation Act, 1996 (for short, 'the Act') to
refer the matter to arbitration as per Agreement of Arbitration in
H.P. Agreement dated 18.02.2012.
3. The case of defendant before the Court below was
that plaintiff gave wrong details about the agreements entered
into between them as the first agreement was entered on
18.02.2012 and not on 09.03.2012; further the amount
mentioned is also not correct as the same was Rs.2,80,000/-
and not Rs.3,00,000/-, as claimed. He further pleaded the suit
is also not maintainable for the reason that H.P. Agreement
entered into between themselves and plaintiff contains an
agreement of Arbitration, as such, the Court below does not
have jurisdiction to try and entertain the suit. He had drawn
attention of the Court to Clause No.2 of Agreement of
Arbitration and prayed to refer the matter to arbitration as per
the said agreement. On the contrary, plaintiff, placing reliance
on Clause No. 31(a) of H.P. agreement which postulates that ' in
case of any dispute or litigation, parties shall submit to the
jurisdiction of the Courts in the city of Hyderabad only and in
no other court', states that the civil Court has jurisdiction to
adjudicate the civil dispute. It is also his case that defendant
never invoked the procedure either to settle the dispute or to
terminate the sale agreement and it is very clear that they
impliedly waived of the arbitration clause and had not allowed
to approbate and reprobate according to their whims and
fancies.
4. The Court below having considered the material and
submissions placed before it, while concurring with the pleading
of plaintiff that Clause 31(a) shows categorically that the parties
i.e. defendant and plaintiff submitted themselves to the
jurisdiction of the Court in Hyderabad and that suit has been
instituted in Courts in City of Hyderabad, observed that the
entire Hire Purchase Agreement does not disclose any
Arbitration Clause, as such came to an opinion that defendant
has not made out any ground so as to refer the matter to
Arbitration nor could show that jurisdiction of the Court is
ousted because of Arbitration Clause and thus, dismissed the
Petition.
5. This Court by order dated 16.07.2024 while
admitting the Appeal, directed that there should be interim stay
as prayed for, initially, for a limited period and subsequently,
the said order was extended from time to time.
6. Learned counsel for petitioner - defendant
Sri Thakur Vijayender Singh submits that the Court below has
come to an erroneous conclusion that the Agreement has a
clause in the which the parties have subjected to jurisdiction of
the Courts which is contrary to the dicta laid down by the
superior Courts in respect of Arbitration and Conciliation Act
and appointment of Arbitrators for adjudication of matters
containing arbitration clause in the agreement.
7. Learned counsel Sri Syed Ershaf appearing for
respondent - plaintiff filed written arguments. He submits that
the Hire Purchase Agreement was executed only for 24 months
on 18.02.2012 and defendant had to be issued legal notice
demanding discharge of his part of contract on completion of 24
months of agreement time. Though defendant had stated that
there are various agreements or renewal of agreements, they
have not brought the same before the Court. He submits that
defendant committed fraud by collecting the regular monthly
installments from the last ten years which is not only against
the said agreement but also the principles of natural justice.
According to learned counsel, objective of the 1996 Act is for
speedy disposal and disputes to be resolved efficiently and
amicably but defendant is just using Section 8 of the Act as
shield to keep away the intervention of judicial authority.
8. Perused the record. Admittedly, the Hire Purchase
Agreement is valid for 24 months from 18.02.2012. Clause 31(a)
thereof states that 'in case of any dispute or litigation, parties
shall submit to the jurisdiction of the court in the city of
Hyderabad only and in no other court'. Though defendant
states that the Court below has no jurisdiction to try the suit,
the very Clause 2 of the Agreement of Arbitration relied on by
them reads as under:
" That all disputes, differences and or claims out of the said
Hire Purchase Agreement including the disputes in respect of the
interpretation, operation or effect of any clause of terms and conditions
of the said Agreement shall be settled by arbitration in accordance with
the provisions of the Arbitration and Conciliation Act, 1996 of or any
statutory amendments thereof and the said disputes shall be referred to
the sole arbitration of Sri Praveen Vyapari, Advocate, Bank Street,
Hyderabad'.
9. When the Hire Purchase Agreement itself, validity of
which has come to an end by 18.02.2014, it cannot be said that
the disputes arising out of the said Agreement shall be referred
to arbitration only, they can as well be adjudicated by the
competent civil Court of jurisdiction at Hyderabad as per Clause
31(a) of the H.P. Agreement. Further, as rightly contended by
plaintiff, defendant has not come forward to invoke Section 8 of
the Act on completion of 24 months time nor while issuing the
reply legal notice on 06.05.2022 nor on the date of filing his
vakalath on the file of lower civil Court at Hyderabad. He wasted
there months of judicial time from the date of filing vakalath
instead of filing petition under Section 8 of the Act. In view of
the same, he cannot take shelter of the provisions under Section
8 of the Act.
10. Therefore, as rightly held by the Court below,
defendant had not made out any grounds so as to refer the
matter to arbitration nor could show that jurisdiction of the
Court below is ousted because of Arbitration Clause. In the
light of the same, this Court does not find any merit and of the
opinion that Appeal is liable to be dismissed.
11. The Civil Miscellaneous Appeal is accordingly,
dismissed. No costs.
12. Consequently, miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
24th January 2025
ksld
