MASTER ABHISHEK MEHAR Vs. DIF COMMERCIAL DEVELOPERS LTD

JUDGEMENT

(1.) THE present application is filed by the defendant under Order 7 Rule 11 of the Code of Civil Procedure (CPC), praying inter alia for rejection of the plaint, on the ground that the suit is barred by law.

(2.) IT is stated by the counsel for the defendant that a bare perusal of the plaint filed by the plaintiffs discloses that the subject matter of the present suit is pending adjudication before the nominated Arbitrator to whom a reference was made by this Court, vide order dated 13.10.2004. In this respect, he draws the attention of this Court to the averments made by the plaintiffs in paras 15 and 16 of the plaint, wherein they have admitted the fact that the subject matter of disputes between the parties, as raised in the present suit is also the subject matter of consideration before the learned Arbitrator. Counsel for the defendant states that as the learned Arbitrator is seized of the entire controversy between the parties, and the matter is pending adjudication before him, this Court is barred from trying the present suit. In this regard, he seeks to rely on the provisions of Section 9 of the CPC and Section 5 of the Arbitration and Conciliation Act, 1996 (in short 'the Act'). Section 5 of the Act stipulates as under :

(3.) IN rejoinder, counsel for the defendant draws the attention of this Court to the orders dated 21.9.2004 and 13.10.2004 passed in CS (OS) No. 734/2004, order dated 31.1.2006 passed by the learned Arbitrator on an application filed by the plaintiffs under Section 12 and 16 of the Act, and the order dated 21.5.2007 passed in OMP No. 431/2006. He states that in view of the aforesaid orders, the issue with regard to the existence of the arbitration clause is no longer open, having been duly adjudicated upon by the learned Arbitrator vide order dated 31.1.2006. He further submits that in view of the categorical finding of the learned Arbitrator to the effect that an Arbitration Agreement exists between the parties, the only remedy available to the plaintiffs is by way of challenging the final award made by the learned Arbitrator, in case the plaintiffs are still aggrieved. In this regard, counsel for the defendant relies on the judgments of the Supreme Court in the case of M.S. Commercial and others v. Calicut Engineering Works Ltd, (2004)10 SCC 656 and S.B.P & Co. v. M/s Patel Engineering Ltd, AIR 2006 SC 450. He also relies on the judgment of this Court in the case of BPL Ltd. v. Morgan Securities & Credits Pvt. Ltd. & Others, 149(2008) DLT 610, to submit that if the Arbitral Tribunal is constituted in accordance with the agreement between the parties, without having recourse to Section 11(6) of the Act, the said Tribunal will have jurisdiction to decide all matters contemplated by Section 16 of the Act.