CANBANK FINANCIAL SERVICES LTD Vs. HARYANA PETROCHEMICALS LTD

JUDGEMENT

(1.) THE Appellant has filed the present first appeal being FAO (OS) No. 71/2006 under Order XLIII read with Order XLIIA read with Section 10 of Delhi high Court Act, 1966, against the order dated 29th August, 2005 passed by the learned Single Judge of this Court. By way of impugned order, the learned single Judge has allowed the Respondent No. 1"s application for referring the disputes raised in the suit by the Appellant/plaintiff to arbitration. In fact, the learned Single Judge specifically directed, "that the parties should take recourse to arbitration and the Arbitrators be appointed in terms of the arbitration Clause. "

(2.) THE learned counsel for the Appellant contends that the Plaintiff is dominus litus and has the right to choose the parties and the forum to enforce the rights legally available to him. He further contends that the Single Judge failed to appreciate that the Respondent/defendant No. 2 is neither a signatory nor a party to the Master Lease Agreement or the supplementary agreement incorporating the Arbitration Clause. The Appellant"s counsel also relied on the judgment of the apex Court in Sukanya Holdings (P) Ltd. Vs. Jayesh H. Pandya reported in (2003 ) 5 SCC 531 to contend that there can be no splitting of causes of actions or parties. He further states that even though today plaintiff/appellant may have no relief against Defendant/respondent No. 2 yet the Single Judge failed to appreciate that the subject matter of the suit has to be seen at the time when the Appellant/plaintiff instituted the suit. According to the counsel for the Appellant, the subject matter of the suit was not the subject of the Arbitration Agreement, at the time of institution of the suit.

(3.) THE learned counsel for the Respondent No. 1 raises a preliminary objection to the maintainability of the present appeal. He contends that in view of Section 37 (1) of the Arbitration and Conciliation Act, 1996, it is not open to the Appellant to file the present appeal before a Division Bench of this court. He submits that the present appeal is not maintainable as the two contingencies in which appeal is maintainable as provided under sub-sections (a)and (b) of Section 37 (1) are admittedly not there namely (a) it is not an order granting or refusing to grant any measure under Section 9 or (b) setting aside or refusing to set aside an arbitral award under Section 34. Emphasis is laid by Respondent"s counsel on the use of words "and from no others" to say that appeal in all other cases is excluded. Section 37 (1) of the Arbitration and conciliation Act, 1996 is reproduced hereinbelow for ready reference.