V.K. Jhanji, J. - (1.) THIS petition for revision is directed against the order of the trial Court whereby application filed by the petitioner under Section 41(b) of the Arbitration Act for grant of ad -interim injunction was dismissed.
(2.) IN brief, the facts are that the petitioner is a public limited company engaged in the manufacture of polythene films, sheets etc. Petitioner and respondent No. 1 entered into an agreement dated 18 -5 -1982, pursuant to which the petitioner undertook to fabricate and process the LDPE granules into polythene lay -flat tubings/films, polythene CAP covers at their factory at Parwanoo. As per the agreement, raw material was to be supplied by respondent No. 1 for the purpose of processing and fabrication, The price which petitioner was to charge for processing/fabrication was on the basis of Aonexure'B' annexed to the agreement. As the product to be processed/manufactured was an excisable item, respondent No. 1 was required to pay in advance to the petitioner the value of excise -duty on weekly basis The, total amount so received on account of excise/duty was to be separately accounted for by the petitioner. Further, as per Clause -17, the agreement was initially valid for a period of one year, but could be cancelled or extended with the written consent of both the parties. Agreement expired on 17 -5 -1983, after which no new agreement was entered into between the parties. However, from 1983, to 1986, the petitioner continued to process/manufacture polythene films, sheets etc. for respondent No. l, During the entire period of the contract and also for the period between 1983 to 1986, the excise -duty was paid by respondent No. 1 to the petitioner. Although petitioner had paid the excise -duty to the Excise" Department, yet petitioner had been making representations to the department, contending therein that the items manufactured by it were not excisable item and thus, no excise -duty was payable. Representation of the petitioner was accepted and consequent upon this, acceptance, the department refunded more than Rs. One crore, forty -four lacs. When respondent No.l came to know of its, it asked the petitioner to return the amount to it as the amount of excise -duty was paid, by it. The amount was not returned, and as per Clause -145 of the agreement which provided for arbitration in case of dispute, the matter was referred to the named Arbitrator. Petitioner, though appeared before the Arbitrator, yet' did not submit to the jurisdiction on the ground that the Arbitrator had no jurisdiction to enter into reference. Petitioner asked the Arbitrator to opine on this objection before proceeding to decide the dispute. The Arbitrator passed a detailed order, holding that he has the jurisdiction to decide the dispute so referred to him. This led to the filing of a petition under Section 33 read with Section 41 of the Arbitration Act before the Sub Judge 1st Class, in which petitioner disputed the validity and existence of the agreement on the ground that after expiry of the agreement, the dispute was not referable to the Arbitrator for adjudication. According to the petitioner, no new agreement between the parties had come into existence and any dispute arisen subsequent to the agreement was not referable. Along with the petition, an application under Section 41(b) of the Arbitration Act was filed for grant of ad interior injunction. The trial Court, on contest, dismissed the application. This order of the trial Court is being impugned in the present revision petition. The contention of learned counsel for the petitioner was that there is no document in existence signed by both the parties extending the original agreement or its; terms and conditions, and in absence of any agreement, dispute could not be referred to the Arbitrator for adjudication. He further contended that If the Arbitrator is allowed to give award, petition under Section 33 itself would become infructuous. In reply, Mr. H.L. Sibal, Sr. Advocate, counsel for respondent No.l, on the strength of various supply orders which were placed on the petitioner by respondent No.l, contended that the agreement was extended with the consent of the parties and the dispute was rightly referred to the Arbitrator.
(3.) HAVING heard learned counsel for the parties at some length and on perusal of documents placed on record of this revision petition, I am of the view that there is no merit in the revision petition. It is not disputed before me that the excise -duty was paid by respondent No.l to the petitioner who in turn paid the same to the Excise Department. Further, the counsel has no disputed that the dispute which arose with regard to refund of excise -duty relating to the period of agreement, can be referred to the Arbitrator. The bone of contention is only for the period between 1983 -1986. Perusal of the supply orders placed on the petitioner from time to time reveals that the parties had agreed to abide by the terms and conditions as contained in agreement dated 18 -5 -1982. For the facility of reference, one such supply order is reproduced as under: - PUNJAB STATE CIVIL SUPPLIES CORPORATION LIMITED (A STATE GOVERNMENT UNDERTAKING) REGD. OFFICE. SCO No. 58 -59, SECTOR. 17 -D, CHANDIGARH No. PR -(P6) -13/17291 Dated 28 -5 -1983. To M/s. Shivalik Agro Poly Products Limited, Plot No. 1, Sector III, Industrial Area, Parwanoo (HP) Subject: - Manufacture of Polythene Covers on Custom basis Sir, In continuation of this office letter No. PB -II(P6) -83/8217, dated 9 -3 -1983, on the subject cited above, you are requested to continue this Work for further 500 (Five Hundred) polythene Covers for the present. Price and other conditions remain unchanged. However, delivery schedule now stands extended accordingly. Yours faithfully sd/ - ; Deputy Director (Storage); for Managing Director CC: 1. Manager, Finance & Accounts, Hqrs. 2. M/s. Shivalik Agrb Poly Products Ltd. 302, Sector 9 -D, Chandigarh. In all these supply orders, it was specifically mentioned that "price and other conditions remain unchanged." As and when there was a change in price from the one as contained in Annexure 'B' to the original agreement, the parties signed a separate agreement to that effect. Two such agreements are dated 3.2.1984 and 18.5.1984. In both these agreements, not only reference has been made to the original agreement entered into between the parties, but it further refers that Annexure 'B' on pricing should be considered to have been amended. From the supply orders and these two agreements and also the other correspondence between the parties, it is abundantly clear that the parties to the original contract agreed to abide by the terms and conditions of the agreement. Original agreement did contain an arbitration clause under which dispute could be referred to the named Arbitrator, and thus, I am of the view that the dispute had rightly been referred to the named Arbitrator.;