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indrajit Sinha Vs. B.L. Rathi - Court Judgment

LegalCrystal Citation
SubjectArbitration
CourtKolkata High Court
Decided On
Case NumberMatter No. 1765 of 1983
Judge
Reported inAIR1984Cal281,1984(2)CHN48,(1984)1CompLJ481(Cal)
ActsArbitration Act, 1940 - Sections 32, 33 and 41; ;Code of Civil Procedure (CPC) , 1908 - Sections 10 and 151
Appellantindrajit Sinha
RespondentB.L. Rathi
Appellant AdvocateR.C. Deb, ;S.K. Gupta and ;U.B. Mukherjee, Advs.
Respondent AdvocateA.C. Bhabra and ;Pratap Chatterjee, Advs.
Excerpt:
- .....1978 and each of them had one copy of the said agreement. the original was lying with indrajit sinha. rathi alleges that indrajit sinha had changed the first page of that agreement and has inserted another page in its place, containing different terms and conditions as well as the alleged arbitration clause and is trying to assert his right on the basis of this forged agreement. he prays for a decision regarding the validity and existence of the arbitration agreement in his application under section 33 of the act. after this section 33 application was taken out, i directed indrajit sinha to produce the original agreement dated 31st march, 1978 in court for the purpose of keeping the same in safe custody. one or two extensions were taken by indrajit sinha for production but ultimately.....
Judgment:
ORDER

Pratibha Bonerjea, J.

1. This is an application under Sections 10 and 151, C. P. C. for stay of an application taken out by the respondent under Section 33, Arbitration Act. The facts of this case are shortly as follows :

The petitioner Indrajit Sinha alleges that there was an agreement between the parties dated 31st March, 1978 whereby the respondent Rathi became a licensee in respect of one room located on the eastern side of the top floor of premises No. 7/1, Lord Sinha Road. The agreement contains certain terms and conditions and Clause 5 of the alleged agreement contains an arbitration clause whereby the parties agreed to refer all the disputes arising out of the said agreement to the sole arbitration of Mr. R.L. Gaggar, Solicitor. This particular agreement also contains one clause, i. e. Clause 3, whereby Rathi is alleged to have agreed to vacate the portion of the room as and when desired by Indrajit Sinha calling upon him to vacate the same either verbally or in writing. Clause 3 of the alleged agreement dated 31st March, 1978 also contains that this clause regarding vacating the premises when called upon to do so by Indrajit Sinha would be applicable to the agreements regarding the garage contained in the letter of 10-9-1977, as also the servant's quarter. On the basis of this agreement, Indrajit Sinha filed a suit in the City Civil Court being Title Suit No. 2124 of 1983 against Rathi for a declaration that the defendant Rathi did not have any right to change the nature and character of the room in suit and the bathroom at the top floor of premises No. 7/1, Lord Sinha Road, permanent injunction against Rathi restraining him from changing the nature and character of the room and the bathroom and from dispossessing Indrajit Sinha or his representative Sri Gopal Chandra Pathak from the said room and the bathroom. The schedule of property in the suit shows that the suit was instituted in respect of one room and the attached bathroom at the top floor of premises No. 7/1, Lord Sinha Road and it did not include the garage or the servant's quarter. This suit was instituted in the City Civil Court on 19-11-1983. During the pendency of the suit, on 30-11-1983 Rathi received a letter dated 28-11-1983 from Mr. R.L. Gaggar intimating him that the disputes covered by the alleged agreement dated 31st March, 1978 were referred to him as the sole arbitrator for adjudication and directing Rathi to appear before him at the meeting to be held on 3rd December, 1983. On 2-12-1983 Rathi took out an application under Section 33, Arbitration Act, challenging the validity and existence of the alleged arbitration agreement dated 31st March, 1978. It is Rathi's case that Indrajit Siaha had entered into a tenancy agreement regarding this room and the bathroom on 31st March, 1978 and each of them had one copy of the said agreement. The Original was lying with Indrajit Sinha. Rathi alleges that Indrajit Sinha had changed the first page of that agreement and has inserted another page in its place, containing different terms and conditions as well as the alleged arbitration clause and is trying to assert his right on the basis of this forged agreement. He prays for a decision regarding the validity and existence of the arbitration agreement in his application under Section 33 of the Act. After this Section 33 application was taken out, I directed Indrajit Sinha to produce the original agreement dated 31st March, 1978 in Court for the purpose of keeping the same in safe custody. One or two extensions were taken by Indrajit Sinha for production but ultimately it was submitted to me by the counsel appearing for Indrajit Sinha that the original agreement was lost somewhere and Indrajit Sinha was not in a position to deposit the original agreement in Court. Thereafter the present application under Sections 10 and 151, C. P. C. has been taken out by Indrajit Sinha for stay of the pending application under Section 33, Arbitration Act.

2. The grounds for stay have been set out in paras 20, 21, 22 and 23 (wrongly numbered as 22) of the petition. When the application under Section 33, Arbitration Act, was moved, it was suggested by the counsel appearing for Indrajit Sinha that the dispute referred to Mr. R.L. Gaggar being the question of eviction of Rathi from the premises was not arbitrable at all in view of the provisions of the West Bengal Premises Tenancy Act. Therefore, the Court should declare the arbitration clause null and void. But Mr. Bhabra appearing on behalf of Rathi was not agreeable to accept that position and wanted to press the application and to have a decision thereon.

3. In paras 21 to 23 of the petition, the grounds for stay have been set out. According to Indrajit Sinha in an application under Section 33 of the Act the Court will have to decide the existence and validity of the arbitration agreement and incidentally of the entire agreement dated 31st March, 1978. In the suit in the City Civil Court, the City Civil Court has to decide the existence and validity of the same agreement dated 31st March, 1978. The suit in the City Civil Court being a prior suit and the issues in the present application and that of the City Civil Court suit being identical, the subsequent proceeding under; Section 33 pending in this Court should be stayed. It is also alleged that the City Civil Court is competent to give a decision on the validity and existence of the agreement dated 31st Mar-1978. Mr. Deb appearing for Indrajit Sinha further submits that Section 10, C. P. C. applies on the facts and circumstances of this case and in view of the fact that the issues involved in Section 33 application being directly and substantially in issue before the City Civil Court in Suit No. 2124 of 1983 and that Court being a competent Court to give decision on those issues, this application should be stayed under Section 10, Civil P. C. If, however, Section 10 does not apply then this Court has inherent jurisdiction to grant stay under Section 151, C. P. C. Mr. Deb places reliance on Section 41, Arbitration Act, in support of his contention that all the provisions of the Civil P. C., 1908 shall apply to all the proceedings before this Court. Mr. Bhabra submits that Section 41, Arbitration Act, is subject to the provisions of the Act and Rules of the Arbitration Act, 1940. Section 32, Arbitration Act, puts a complete bar to the Civil Courts from deciding the matters covered by Section 33, Arbitration Act. In my opinion, Mr. Bhajra's submissions have great force. The alleged contract dated 31st March, 1978 relied on by Indrajit Sinha is a rolled up contract containing the terms on, which Rathi was allowed to take possession of ithe room in the premises No. 7/1, Lord Sinha load as well as an arbitration clause. The effect is that two agreements have been rolled into one. The alleged arbitration clause is not severable from the rest of the alleged agreement In that view of the matter, in my opinion, City Civil Court would not be a competent Court to give a finding on this alleged agreement containing the arbitration clause, as it would be hit by the provisions of Section 32, Arbitration Act, 1940. Therefore, in my opinion, City Civil Court is not a competent Court to decide the issues involved in the pending application under Section 33, Arbitration Act. When Section 32, Arbitration Act, completely prohibits a Civil Court from deciding the existence and validity of the arbitration agreement and Section 41, Arbitration Act lays down that the Civil Procedure Code will apply subject to the provisions and rules of the Arbitration Act. 1940, then Section 10, C. P. C, cannot apply on the facts and circumstances of this case and the question of its applicability cannot arise.

4. So far as Court's inherent jurisdiction under Section 151, C. P. C. is concerned, I do not think that on the facts and circum-stances of this case inherent jurisdiction can be exercised to stay the pending application in view of the fact that tbe City Civil Court is incompetent to decide the issues pending before me in the application under Section 33 of the Act.

5. In that view of the matter, there will be no order on this application. The respondent will be entitled to the cost of this application.

6. Mr. Gupte prays for stay of operation of this order. The prayer for stay is refused.


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