FRESENIUS A G Vs. DALMIA INDUSTRIES LIMITED

JUDGEMENT

(1.) This is a writ petition filed by the petitioners, who are defendants in the suit in the lower Court, under Art.227 of the Constitution of India seeking prayer to set aside judgment and order dated 21-11-1997 passed in Civil Revision No.20 of 1997 (arising out of suit No.1044 of 1995) by the District Judge, Ghaziabad and the order dated 11th Sept. 1996 passed by the IIIrd Civil Judge (Senior Division), Ghaziabad, Prayer has also been made for staying the suit i.e. suit No.1044 of 1995 in terms of Section 3 of the Foreign Awards (Recognition and Enforcement) Act. 1961.

(2.) The record of the petition is voluminous but the point is short. There is famous saying that "if there is a right, there is remedy."The District Judge has held that no revision petition is maintainable out of the order passed by the IIIrd Civil Judge (Senior Division), Ghaziabad and the declined to stay the proceeding of the suit in accordance with the provisions of Arbitration agreement entered into between the parties long before the suit has been filed. The learned District Judge was of the view that the Arbitration Act of 1940 was repealed by Section 85 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) appeal shall lie from the order of the Court refusing to refer the parties to arbitration. He was further of the view that under the Arbitration Act. 1940 (hereinafter referred to as the Act of 1940 under Section 40 there was no provision for revision but of an appeal and since the appeal has not been filed so revision does not life. He was also of the view that under the Act of 1996 as referred there is provision of appeal and since revision has been filed so revision is not maintainable. The reasoning seemed to be plausible but if we go into depth they lose its plausibility and they appear to lack force. It appears that the District Judge has missed by over sight cardinal principle of law which would be discussed hereinafter.

(3.) Briefly to understand this controversy this court would not touch the merits and demerits o the case. It appears that plaintiffs-respondent filed a suit against the petitioner-defendants. The petitioners are Foreign Companies based in Germany and dealing in manufacture and marketing of medical equipments particularly Dailysers and Blood Tobing System. Agreement dated 4.11.1987 was entered into between the petitioners and the respondent No.1 and thereafter on 8.7.1988 the respondent No.1 was granted approval by the Government of India for setting up a new industrial undertaking for manufacture of the aforesaid items in N.E.F.Z. Noida, District Ghaziabad. It is alleged that the respondents filed suit stating therein that the manufactured product of its factory was exclusively for export and could not be marketed in India. It appears from the allegation that the technical know how agreement dated 21.9.1988 was entered into between the petitioner and the respondent No.1 and a sale promotion agreement dated 27.4.1989 was also entered. There are so many agreements which need no reference for the purpose of decision. It is alleged that in pursuance of these agreements respondent No.1 and 2 plaintiffs performed their part by investing crores of rupees and other contribution as mentioned in the plaint. The crux of the allegation is that the petitioner violated the technical know how agreement and sale promotion agreement. The plaintiff-respondents later on came to know that the petitioner-defendant had entered into an agreement with the respondent No.3. Hence suit no.1044 of 1995 was filed calling the respondents-petitioners to pay damages. It may be mentioned that relief against the respondent was also claimed.In other words the plea of the plaintiff-respondent is that it had exclusive right regarding know how etc. and it could not be transferred or imparted to any other party. It may be mentioned here that the respondent No.3 is not a party to the agreement entered into between the petitioner and the respondent Nos.1 and 2. The respondent No.3 contested the suit and filed written statement on 9-11-1995.