PRASENJIT MANDAL,J. - (1.) THIS application is at the instance of the defendant and is directed against the Order No.11 dated July 19, 2011 passed by the learned Civil Judge (Junior Division), 4th Court, Alipore in Title Suit No.2413 of 2010 thereby rejecting an application under Order 7 Rule 11 of the C.P.C.
(2.) THE plaintiff / opposite party herein instituted a suit being Title Suit No.2413 of 2010 against the defendant / petitioner herein for declaration that the notice dated February 4, 2010 served by the Manager of the defendant no.1 to the plaintiff is void, ineffective and not maintainable; declaration that the notice dated February 22, 2010 served by the Arbitrator is illegal, void, ab initio; declaration that the plaintiff is entitled to all his arrears salary, etc. from February 2009 to March 15, 2009 and other reliefs. The defendant / petitioner herein entered an appearance and filed an application under Order 7 Rule 11 of the C.P.C. for rejection of the plaint contending, inter alia, that as per terms and conditions of rendering service by the plaintiff to the defendant shall be regulated by the agreement executed between the parties and as per agreement, in case of any dispute between the parties, the matter shall be referred to the Arbitrator to be appointed as per terms of the agreement. Accordingly, the defendant after appearance filed an application under Order 7 Rule 11 of the C.P.C. for rejection of the plaint. That application was rejected by the impugned order. Being aggrieved, the defendant has preferred this application. Now, the question is whether the impugned order should be sustained. Having heard the learned Advocates for the parties and on going through the materials on record, I find that by the letter dated November 30, 2008, the plaintiff requested the defendant to release him after May 31, 2009. Thereafter, by a letter dated August 6, 2009, the defendant issued a notice upon the plaintiff contending that in breach of the contract of service as per Service Rules, he left the job and as such, he was directed to pay to the defendant a sum of Rs.7,96,249/- together with interest at the rate of 18 per cent per annum on the aforesaid amount w.e.f. March 13, 2009 till payment. The defendant also intimated that the plaintiff left the job without any intimation on March 13, 2009 in contravention of the service contract. In order to dispose of the application under Order 7 Rule 11 of the C.P.C., the Court is to look into the plaint case and the documents annexed to the plaint as Annexures, if any. The petitioner is required to prove that the statements made by the plaintiff in the plaint without any doubt or dispute show that the suit is barred by any law. On perusal of the plaint, it does not appear that there is any arbitration clause.
(3.) MR. S. Gangopadhyay, learned Advocate appearing for the petitioner submits that the service contract lays down the term in paragraph 37(a) at page no.115 of the application for solving the dispute in the following manner and the said clause is quoted below:- "37(a) All disputes and differences of any nature with regard to the FIITJEE service manual and the interpretation and adjudication of clause and claims respectively shall be referred to the Sole Arbitrator appointed by the Company i.e. FIITJEE Ltd. The arbitration proceedings shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and statutory modification thereof and rules made thereunder. The award of arbitrator shall be final and binding on both the parties. The award of the arbitrator shall be final and binding on every matter arising hereunder. It is further agreed that in spite of the fact that the Sole Arbitrator may be known to any of the Directors of share holders and that he may have been dealing with the Company or had occasion to deal with any matter of this agreement shall not disqualify him. Even if the Arbitrator may have expressed opinion in similar matter earlier shall also not render him disqualified. The venue of the arbitration shall be Delhi/New Delhi only." But neither the plaint nor the annexures to the plaint lay down such arbitration clause. Rather, there is a denial of such arbitration clause as discussed later on. This contention is a mere defence stance. Mr. S. Gangopadhyay, learned Advocate appearing for the petitioner submits that the plaintiff has suppressed the fact and he did not mention at all about the arbitration clause. But, he has mentioned in the reliefs sought for in the plaint relating to notice and such reliefs have proved that there is a clause for arbitration. In this regard, I am of the view that if the plaint is rejected as prayed for, such rejection of the plaint will be deemed to be a decree and in that case, the plaintiff will be debarred from proceeding with the suit filed by him or from instituting any other proceeding. If there is any clause for arbitration as pointed out by Mr. Gangopadhyay, the proper remedy of the defendant / petitioner, I think, is to file an application under Sections 5 & 8 of the Arbitration and Conciliation Act, 1996 for referring the disputes and differences to the Arbitrator to be appointed as per agreement between the parties. Therefore, the contention of the defendant that the application under Order 7 Rule 11 of the C.P.C. should have been allowed by the learned Trial Judge, I hold, is not convincing. Mr. Gangopadhyay has referred to the decision of P. Anand Gajapathi Raju & ors. v. P.V.G. Raju (Dead) & ors. reported in (2000) 4 SCC 539 and he has submitted that according to this decision, as per Section 8 of the Arbitration and Conciliation Act, 1996, the suit before the Civil Court is not maintainable and so, the application under Order 7 Rule 11 of the C.P.C. should have been allowed. With due respect to Mr. Gangopadhyay, I am of the view that this decision does not help the petitioner at all. Rather, it has been decided therein that when a suit is filed, the other party is required to move the Court for referring the parties for arbitration before he submits his first statement on the substance of the dispute. Mr. Gangopadhyay has next referred to the decision of General Manager Telecom v. M. Krishnan & anr. reported in (2009) 8 SCC 481 and thus, he has submitted that when there is a specific procedure, steps should be taken accordingly. In the instant case, since a special procedure is required to be taken under the provisions of the Arbitration and Conciliation Act, 1996, a suit before a Civil Court is not maintainable. This decision is of general in nature showing the Forum before which a particular grievance or dispute is to be solved. This decision will not help the petitioner in the matter of disposal of the application under Order 7 Rule 11 of the C.P.C. Accordingly, I am of the view that this decision is not applicable. ;