Syamal Kanti Chakrabarti - (1.) IN the instant revisional application under Article 227 of the Constitution order no. 34 dated 27th November, 2006 passed by the learned Civil Judge (Junior Division) at Silugiri rejecting an application filed by the petitioner under Section 5 and 8 of the Arbitration and Conciliation Act, 1996 in Title Suit No. 181 of 2004 has been assailed.
(2.) THE defendants/ petitioners claimed that there was a hirepurchase agreement between the petitioner and the opposite party no. 1 in terms of which a vehicle was let out to the opposite party no. 1 for a total hire-purchase price of Rs. 1,98,578/-. In terms of such agreement the opposite party no. 1 was required to pay the amount in monthly instalments as hirer. But he failed to pay the sum regularly. In such case there was provision in such agreement that the lender/ petitioner will be at liberty to repossess the vehicle from the hirer and would dispose of the same in satisfaction of their outstanding claims. Accordingly the petitioner in the instant case exercised such right and repossessed the vehicle. THEn the opposite party no. 1 filed a writ petition before the Honble High Court being W. P. No. 11124(W) of 2004 which was, however, dismissed on 06.08.2004. THEreafter, the opposite party no. 1 filed a civil suit being Title Suit No. 99 of 2004 before the learned Civil Judge (Junior Division), Siliguri against the petitioner and the opposite party no. 2. He filed also similar suit earlier which was, however, withdrawn on application filed under Order 23 Rule 1 CPC by order dated 4th May, 2005 without any leave to file fresh suit on self-same cause of action. But the opposite party no. 1 filed the second suit impleading the opposite party no. 2, Beekay Automobiles as third defendant which has been registered as T. S. No. 181 of 2004. In such second suit the petitioner filed an application under Section 5 and 8 of the Arbitration and Conciliation Act, 1996 for refereing the dispute to the learned Arbitrator in terms of the agreement entered by and between the parties as aforesaid. But the learned Trial Court by order no. 34 dated 27.11.2006 has dismissed such application on the ground that the defendant no. 2 Beekay Automobiles is not a party to the arbitration agreement and that the entire subjectmatter of the suit is not the subject-matter of the arbitration agreement. THErefore, it is contended that such an order is not sustainable in law inasmuch as it amounts to denial of a statutory right conferred upon a party to an agreement under Section 8 of the Arbitration and Conciliation Act, 1996. Learned Lawyer for the petitioner has referred to and relied upon the principles laid down in (a) 2004(4) SCC 539 [P. Anand Gajapati Raju & Ors. Vs. .V.G. Raju (Dead) & Ors.]; (b) 2003(6) SCC 503 [Hindustan Petroleum Corpn. Ltd. Vs.- Pinkcity Midway Petroleum]; (c) 2006(7) SCC 275 Rashtriya Ispat Nigam Ltd. & Anr. Vs. Verma Trans]; and (d) 2007(1) Arb LR 235 Agri Gold Exims Ltd. Vs. Sri Lakshmi Kuits & Wovens & Ors.] in support of his contention that where there exists an agreement of arbitration it is mandatory for the Courts to refer such disputes to arbitration in accordance with the Act. Learned Lawyer for the petitioner has also drawn my attention to the principles laid down in AIR 1974 AP 278 [M/s. Srivenkateswara Constructions & Ors. Vs.- Union of India] and AIR 1975 Cal 222 [Biswanath Rungta Vs.- O.I. Engineering] to substantiate his further contention that by impleading necessary parties to the suit a party cannot avoid arbitration agreement and get the dispute adjudicated by a Civil Court. Such steps or actions are contrary to the very object of the said Act.
(3.) LEARNED Lawyer for the plaintiff/ opposite party on the contrary has claimed that the petitioners have not approached this Honble Court with clean hands and suppressed material facts and withheld vital documents which would be evident from the series of facts narrated in paragraphs 3(a) to 3(k) of the affidavit-inopposition filed by him. As the parties to the Title Suit No. 181 of 2004 and parties to the aforesaid agreement are not same the learned Court below has rightly dismissed the application which should not be interfered with. In fact, the plaintiff/ opposite party no. 1 withdrew the earlier suit and filed a fresh suit in order to incorporate some subsequent events in the plaint to avoid future completion and multiplication of suits. In such case the question of granting leave by the Court at the time of withdrawal of the earlier suit being Title Suit NO. 99 of 2004 was not a legal necessity. He has referred to and relied upon the principles laid down in AIR 1985 P&H 219 (Giridhari Lal Bansal Vs. The chairman, Bhakra Bes Management Board & Ors.), AIR 2002 Cal 22 (Anadi Mohan Rashit & Ors. Vs. Nalin Sarkar Street School & Ors.)AIR 1992 Ker 85 (P.A. Muhammed Vs. Central Bank & Anr.) etc. in support of such contention. He has further contended that in fact, there has been specific allegation in the plaint against the defendant no. 3 in the later suit giving rise to fresh cause of action at a later stage. Therefore, the legality and propriety of filing the subsequent suit cannot be called in question and decided while considering an application under Section 5 and 8 of the Arbitration and Conciliation Act, 1996. Despite pendency of such suit the petitioner has disposed the vehicles in question without prior leave of the learned Court below and suppressing this fact they preferred the application under Section 5 and 8 of the Act. While such dispute was subjudice in the Civil Court and pending revisional application against such order of dismissal dated 27.11.2006 the petitioner has referred the matter to the Arbitrator and submitted their claim on 21.05.2007. Ignoring the request of the plaintiff/ opposite party no. 1 the learned Arbitrator has proceeded with the arbitration and in the letter dated 28.11.2007 has informed that the learned Arbitrator has already passed an award and the plaintiff/ opposite party was directed to pay to the petitioners a sum of Rs. 2,74,909/- along with interest payable at the rate of 18% per annum with effect from the date of the award till realisation of the amount and thus the application has become redundant. In the above context the learned Court below has rightly rejected the application under Section 5nand 8 of the Act which should not be interfered with in this revisional application and the same is liable to be dismissed.;