BHARTIA CUTLER HAMMER LIMITED Vs. AVN TUBES LIMITED

JUDGEMENT

(1.) .M/s Bhartia Cutler Hammer Ltd. has filed a suit under the summary procedure of the Code of civil procedure for recovery of Rs.2.24.895 - against AVN Tubes Limited. Plaintiff has based his claim on the basis of the outstanding bills amount not paid by the defendant. The defendant had placed an order on the plaintiff company for the supply of Thyristor drive and Motors (hereinafter called the equipment). This order was placed vide letter dated 16th April, 1987 Plaintiff supplied the materials and equipments as per order which was accepted by the defendant. The equipment was installed & commissioned by the plaintiff on 22nd May, 1987, 7/9th July, 1987 and 22nd October, 1987 respectively. After the installation, the equipment is working satisfactorily. The defendant company was to furnish the sales-tax Form-C to the plaintiff company in order to get exemption for the sales-tax. Even that the defendant has failed to furnish. Therefore, the plaintiff will have to pay additional 6% CSI which they are entitled to recover from the defendant. The defendant has failed and neglected to pay the outstanding bills amount in spite of repeated reminders, hence this suit under Order XXXVII of the code of Civil Procedure.

(2.) .Notice under Form-IV Schedule B of Order 37 was issued to the defendant. In response to which while entering appearance, the defendant has moved the present application under Section 34 of the Arbitration Act, inter alia pleading that in view of the arbitration clause in the agreement entered into by the parties, the suit is not maintainable. The letter dated 16th April, 1985, on the basis of which the order was placed by the defendant on the plaintiff, a concluded contract came into existence. The said letter dated 16th April, 1985 incorporated a clause No.18 which is an arbitration Clause. In view of this arbitration clause the remedy with the plaintiff was to seek arbitration instead of filing a civil Suit. The defendant has always been ready and willing to apoint arbitrator.