SAURASHTRA CHEMICALS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of India, the petitioner - original plaintiff has prayed for an appropriate writ, order and/or direction quashing and setting aside the order dtd. 24/10/2005 passed below Ex. 53 by the learned 2nd Additional Senior Civil Judge, porbandar in Regular Civil Suit No. 316 of 1993 in allowing the application Ex. 53 submitted by the respondents herein -original defendants by directing both the parties to refer the dispute / matter to the arbitrator as per Clause 34 of the Siding agreement which is produced at Mark 4/1 appointed by the defendants and to produce its report of arbitrator within six months.

(2.) THE petitioner herein - original plaintiff ("the plaintiff" for short) filed special Civil Suit No. 14 of 1990 in the court of learned Additional Civil Judge (S. D.), Porbandar against the respondents herein - original defendants ("the defendants" for short) on 23/3/1990, which was subsequently renumbered as Regular civil Suit No. 316 of 1993, praying for declaration of the Western Railway authorities to restrain to add 26 minutes in computation of time for the placement of wagons from Porbandar Station to the plaintiff's plant being illegal, unauthorised and further restraining by a permanent injunction from adding 26 minutes in the computation timing for determining the siding charges and further praying for a declaration that the petitioner is entitled to the use of steam engine and/or diesel for the purpose of hauling wagons from Porbandar station to the plaintiff's siding and other consequential reliefs.

(3.) IT appears that Written Statement came to be filed by the defendants in the year 1991. It appears and it is the case of the plaintiff that in the written statement nowhere the defendants have contended that the dispute is required to be referred to the arbitrator. Issues came to be framed by the trial court in the aforesaid Regular Civil suit No. 316 of 1993 at Ex. 20. It also appears from the record that the defendants submitted application Ex. 52 on 26/2/2004 under Order VI Rule 17 praying for amendment of the Written Statement to contend that in view of the Clause 34 of the agreement dtd. 22/9/1990, the suit is not maintainable and the dispute should be referred to the arbitrator. Simultaneously on the very day the defendants submitted application Ex. 53 under sec. 8 of the arbitration and Conciliation Act, 1996 ("arbitration Act" for short) praying for direction to refer the dispute to the arbitrator. The plaintiff submitted objection/ reply to the application Ex. Nos. 52 as well as 53 objecting to the amendment as well as application regarding the dispute to the arbitrator. It also appears that the defendants submitted application Ex. 45 under sec. 34 of the Arbitration Act and the plaintiff submitted his reply/objection vide ex. 45. By the impugned order below Ex. Nos. 41, 52 and 53, the learned 2nd additional Senior Civil Judge, Porbandar dismissed the application Ex. Nos. 41 and 52 and allowed the application Ex. 53 and passed the impugned order directing to refer the dispute to the arbitrator. Being aggrieved by and dissatisfied with the impugned order passed by the trial court below application Ex. 53 referring the dispute of the Regular Civil Suit No. 316 of 1993 to the arbitrator, the petitioner -original plaintiff has preferred the present petition under Article 226 of the constitution of India.