UNION OF INDIA Vs. A U MALEK

JUDGEMENT

(1.) THIS Civil Revision Application under Sec.115 of the Code of Civil Procedure challenges order dated 10-9- 2012 passed below Ex.11 in Regular Civil Suit 2012 by the learned 5 th Additional Sr. No.220 of Civil Judge, Vadodara.

(2.) FACTS in short are that the suit in question was filed by the present respondents-original plaintiffs for declaration and permanent injunction against the present petitioners-original defendants challenging the notice dated 10-2-2012 issued in pursuance of the policy decision of Union of India dated 21-7-2012 by the defendants demanding revised license fees and categorization of Bharuch Station in 'A' category and praying to restrain the defendants from closing their stall/trolley for non-payment of license fees as per policy decision. The defendants by an application at Ex.11 filed under Sec.8 of the Arbitration and Conciliation Act, 1996 prayed to refer the matter to arbitration in view of Clause 55 of the Contract Agreement. The plaintiffs filed their reply thereto at Ex.19. The defendants by filing pursis below Ex.20 declared that certified copies of contract agreement and correspondences thereto between the parties be read as part and parcel of application filed below Ex.11. The defendants also filed applications below Exs.21 and 22 respectively for production of documents and also produced list of documents. The trial court rejected application Ex.11 vide order dated 10-9-2012. Being aggrieved by the said order, present revision is preferred by the defendants.

(3.) IT is submitted by Mr.Parikh that the impugned order is contrary to the law and evidence on record. He further submitted by rejecting application Ex.11 filed by the defendants, the trial court has exercised jurisdiction not vested in it. He further submitted that the trial court failed to appreciate that as per the practice prevailing in Railways, when contracts are renewed, only minutes are issued wherein it used to be mentioned that the parties to the agreement agree to the extension of agreement which means that all the terms and conditions of the agreement including the arbitration clause remain in existence with change in the period of contract. This aspect has not been considered by the trial court and hence, the impugned order requires to be quashed and set aside. He further submitted that the plaintiffs did not deny the contract agreement nor extension thereof by way of minutes and, therefore, when the fact of existence of arbitration clause is not disputed by the plaintiffs, the matter should have been referred for arbitration for invocation of arbitration clause No.55 drawing an inference about existence of agreement, however, the trial court rejected the application on the ground that defendants did not produce any fresh or renewed agreements entered into by and between the parties after 2002 and 2005 thereby the trial court has committed a grave error. In this regard, he relied on a decision of the Hon'ble Apex Court in the case of M/s Shakati Bhog Foods Ltd. Vs. Kola Sipping Ltd. reported in 2009(1) GLH page 282.