$~3 * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
03. 11.2016 CM(M) 1044/2016 RUP BASANT Through versus (Presence not given) ........ Petitioner
SANJANA CHOPRA Through None. ..... Respondent CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.
(ORAL) 1. The present petition is filed under Article 227 of the Constitution of India seeking to impugn the order dated 07.09.2016 by which an application filed by the petitioner under Order 7 Rule 11 CPC was dismissed by the trial court.
2. The relevant background facts are that the respondent has filed a suit for mandatory and permanent injunction against the petitioner seeking a decree of permanent injunction to restrain him from interfering using or causing to be used front portion of the half terrace for any purpose like water tanks, TV antenna etc. regarding the property No.247, Block A, Shivalik Colony, Malviya Nagar, New Delhi.
3. As per plaint, petitioner was the owner of the property which is allotted to him by the President of India through Ministry of Home Affairs. He entered into a collaboration agreement with the builder vide agreement dated 06.09.2006. Thereafter, the petitioner is said to have executed a sale CM(M) 1044/2016 Page 1 deed in respect of the second floor constructed by the builder by registered sale deed dated 19.01.2007 in favour of the builder. The respondent has purchased the said second floor from the builder vide sale deed dated 12.03.2007.
4. It is the contention of the petitioner, as contained in the written statement, that the said sale deed executed by the petitioner in favour of the builder dated 19.01.2007 has an arbitration clause. This court on a petition filed by the petitioner appointed an arbitrator, Sh.Prem Kumar (Retd.ADJ) where the dispute is pending. The respondent is also a party. Based on these facts, the petitioner filed an application under Order 7 Rule 11 CPC for rejection of the plaint being barred by law.
5. The trial court vide impugned order noted three reasons for dismissal of the application, i.e. firstly, as the petitioner has moved the application under Order 7 Rule 11 CPC alongwith written statement whereas as per Section 8 of the of the Arbitration & Conciliation Act, the same should have moved before putting the defence at the first instance. Secondly, there is no arbitration agreement between the petitioner and the respondent. The arbitration agreement is between the petitioner and the builder. Thirdly, the relief sought by the suit is not arbitrable.
6. A query was put to the learned counsel for the petitioner as to under which provision of the Arbitration & Conciliation Act, the present suit filed by the respondent is barred. He was unable to specify any particular provision.
7. Sections 5 and 8 of the Arbitration & Conciliation Act read as follows: “5. Extent of judicial intervention.-.Notwithstanding anything CM(M) 1044/2016 Page 2 contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.
8. Power to refer parties to arbitration where there is an arbitration agreement.- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in subsection (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.” The Supreme Court in the case Sukanya Holdings (P) Ltd. v. Jayesh 8. H.Pandya & Anr., (2003) 5 SCC531held as follows: “12. For interpretation of Section 8, Section 5 would have no bearing because it only contemplates that in the matter governed by Part-I of the Act, Judicial authority shall not intervene except where so provided in the Act. Except Section 8, there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the arbitral Tribunal, if-(1) the parties to the arbitration agreement have no filed any such application for referring the dispute to the arbitrator; (2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof. This would, therefore, mean that Arbitration Act does not oust the jurisdiction of the Civil Court to decide the dispute in a case where parties to the Arbitration Agreement do not take appropriate steps as CM(M) 1044/2016 Page 3 contemplated under Sub-sections (1) & (2) of Section 8 of the Act.” 9. In the present case, the petitioner has filed his defence, i.e. written statement. Admittedly, the petitioner has not filed any application under Section 8 of the Act. He has also not filed the original arbitration agreement. In the light of the above facts, it cannot be said that the suit filed by the respondent is barred by the Arbitration and Conciliation Act. Even otherwise, the petitioner has not been able to show that an arbitration agreement exist the between the parties to the present suit. There was an arbitration clause in the sale deed between the petitioner and the builder. Pursuant to the said arbitration clause, an arbitrator has been appointed where the respondent has also been impleaded as a party. The subject matter of the present suit is not stated to be covered by the Arbitration Proceedings.
10. In view of the above, it is clear that the facts and the issues involved in the present suit are entirely different. Nothing has been placed on record to show that there is an arbitration agreement between the parties. There is no merit in the present petition and the same is dismissed. NOVEMBER03 2016/v JAYANT NATH, J.
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