KAVITA BHASKAR WIFE OF RAKESH BHASKAR Vs. H P GENERAL INDUSTRIES COPORATION LTD

JUDGEMENT

(1.) Order Present petition is filed under Article 227 of Constitution of India against order dated 4.6.2014 passed by learned Civil Judge (Jr. Division) Court No. VI Shimla in civil suit No. 38/1 of 2012 titled Kavita Bhaskar vs. H.P. General Industries Corporation Ltd. Brief facts of the case

(2.) Plaintiff Smt. Kavita Bhaskar filed civil suit for recovery of Rs. 21,318/-(Rupees twenty one thousand three hundred eighteen only) along with interest and future interest at the rate of 18% per annum w.e.f. 13.10.2009. It is pleaded that plaintiff carries business of sale and supply of hospital equipments and surgical items. It is pleaded that defendant placed order for purchase of various medical and surgical items as per requirements of various hospitals. It is pleaded that written agreement was executed between the plaintiff and defendant on 2.1.2009 placed on record. It is pleaded that plaintiff supplied material to the defendant vide invoice Nos. 2176, 2177 and 2178 dated 16.3.2009 amounting to Rs. 295800/- (Rupees two lacs ninety five thousand eight hundred only). It is pleaded that defendant vide cheque dated 13.10.2009 paid an amount of Rs. 274482/- (Rupees two lacs seventy four thousand four hundred eighty two only) and withheld an amount to the tune of Rs. 21318/- (Rupees twenty one thousand three hundred eighteen only). During the pendency of suit plaintiff filed application under Order XXIII Rule 1 (3) of Code of Civil Procedure pleaded therein that defendant has filed written statement and defendant took preliminary objection No. 2 in written statement that as per terms and conditions of written agreement there is provision for arbitration proceedings as per Arbitration and Conciliation Act 1996 and present suit is not maintainable. Plaintiff sought the relief from learned trial Court that plaintiff be permitted to withdraw the present civil suit with permission to file claim before Arbitrator under Arbitration and Conciliation Act 1996 in view of written agreement executed inter se the parties. Non-petitioner filed response to application pleaded therein that application is not maintaibale and defect is not formal in nature. It is pleaded that arbitration clause was already in the knowledge of petitioner when civil suit was filed. Prayer for dismissal of application sought.

(3.) Learned trial Court dismissed the application filed by plaintiff on the ground that as per Order XXIII Rule 1 (3) CPC there is no provision to permit the plaintiff to agitate the matter afresh before the Arbitrator.