Y.HARISH Vs. Y.SATISH

JUDGEMENT

(1.) The captioned writ petition is filed by the defendant Nos.1 and 4 assailing the correctness of the order dtd. 31/3/2022 passed by the Commercial Court on I.A.No.11 filed under Order 7 Rule 11(d) read with Sec. 151 of CPC and Sec. 11 of the Commercial Courts Act, 2015.

(2.) The respondent No.1/plaintiff instituted a suit before the Commercial Court seeking a direction to the present petitioner No.1 to pay a sum of Rs.7,34,12,647.00. The present petitioners, on receipt of summons, have contested the proceedings and have filed the instant application under Order 7 Rule 11(d) read with Sec. 151 of CPC seeking rejection of plaint as being barred by law. The present petitioners claim that respondent No.1/plaintiff got issued a legal notice calling upon the present petitioner No.1 to resolve the dispute by way of arbitration. Therefore, the present petitioner contended that arbitral proceedings having already commenced at the instance of respondent No.1/plaintiff who has issued a notice, now cannot maintain a suit before the Commercial Court and the only recourse that is available for respondent No.1 is to file an application under Sec. 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') for appointment of an Arbitrator.

(3.) The learned Judge having heard both the parties and having examined the material has rejected the application. The learned Judge while rejecting the application has taken judicial note of the reply notice issued by the present petitioners herein. Having examined the reply notice, the learned Judge was of the view that the petitioners having objected for appointment of proposed sole Arbitrator on the ground that dispute does not fall within the arbitration clause, now cannot turn around and say that the present suit is not maintainable. The learned Judge while rejecting the application has also observed that the present petitioners have waived off their rights and therefore, they cannot insist the respondent No.1/plaintiff to adopt a recourse under Sec. 16 of the Act of 1996. It is this order which is under challenge.