CHANCHAL GHOSH Vs. TRIPURA TRUCK OWNERS SYNDICATE

JUDGEMENT

(1.) THIS appeal is directed against the order dated 22.02.2002 passed by the learned District Judge, West Tripura, Agartala, whereby he allowed the appeal of the respondents (hereinafter referred to as the 'defendants ') and set aside the Judgment & Decree dated 10.05.2010 passed by the learned Civil Judge (Jr. Divn.), No. 2, Agartala in Suit No. M.S. 5 of 2008 on the ground that the matter was required to be referred to arbitration.

(2.) THE plaintiff is the owner of a truck and was a member of the defendant -Tripura Truck Owners Syndicate. The appellant filed a suit for recovery of Rs. 43,728/ - along with interest @ 12% per annum on the ground that his truck had been deputed by the defendants and therefore, he was entitled to this amount from the defendant -Syndicate. I am purportedly not going into the facts in detail because in view of the decision which this Court proposes to take, it should not be appropriate to express any opinion on the merits of the dispute between the parties. The defendants contested the case and one of the grounds of contest was that the suit was not maintainable as there was an arbitration clause for settling the disputes between the parties. The learned trial Judge did not agree with the defendants and the suit was tried and decreed. The defendants filed an appeal and the learned Appellate Court held that there was an arbitration agreement between the parties and in terms of such agreement, the matter was required to be referred to arbitration. The learned Appellate Court, therefore, set aside the Judgment and decree and the suit was remanded to the Trial Court with a direction to consider the arbitration clause contained in the By -laws/Constitution of the defendants and to dispose of the matter by following the procedure prescribed in Section 89 of the CPC. Aggrieved by this order, the plaintiff has filed the present appeal.

(3.) NO substantial question of law was framed at the time of filing of appeal, but in my view, the following substantial questions of law arise in the appeal: - i) Whether an application under Section 8 of the Arbitration and Conciliation Act must be filed and pressed before filing of the first written statement before the party claiming benefit of the arbitration clause can rely upon the same? ii) Whether it is necessary to produce the arbitration agreement at the time of filing of the application under Section 8 of the Arbitration and Conciliation Act? iii) Whether Section 89 of the CPC has any application to the facts of the case?