TATA FINANCE LIMITED Vs. MOLOY BISWAS

JUDGEMENT

(1.) IN the instant revisional application under Article 227 of the Constitution order no. 34 dated 27th November, 2006 passed by the learned Civil Judge (Junior Division) at Silugiri rejecting an application filed by the petitioner under Section 5 and 8 of the Arbitration and Conciliation Act, 1996 in Title Suit No. 181 of 2004 has been assailed.

(2.) THE defendants/ petitioners claimed that there was a hirepurchase agreement between the petitioner and the opposite party no. 1 in terms of which a vehicle was let out to the opposite party no. 1 for a total hire-purchase price of Rs. 1,98,578/-. In terms of such agreement the opposite party no. 1 was required to pay the amount in monthly instalments as hirer. But he failed to pay the sum regularly. In such case there was provision in such agreement that the lender/ petitioner will be at liberty to repossess the vehicle from the hirer and would dispose of the same in satisfaction of their outstanding claims. Accordingly the petitioner in the instant case exercised such right and repossessed the vehicle. THEn the opposite party no. 1 filed a writ petition before the Honble High Court being W. P. No. 11124(W) of 2004 which was, however, dismissed on 06.08.2004. THEreafter, the opposite party no. 1 filed a civil suit being Title Suit No. 99 of 2004 before the learned Civil Judge (Junior Division), Siliguri against the petitioner and the opposite party no. 2. He filed also similar suit earlier which was, however, withdrawn on application filed under Order 23 Rule 1 CPC by order dated 4th May, 2005 without any leave to file fresh suit on self-same cause of action. But the opposite party no. 1 filed the second suit impleading the opposite party no. 2, Beekay Automobiles as third defendant which has been registered as T. S. No. 181 of 2004. In such second suit the petitioner filed an application under Section 5 and 8 of the Arbitration and Conciliation Act, 1996 for refereing the dispute to the learned Arbitrator in terms of the agreement entered by and between the parties as aforesaid. But the learned Trial Court by order no. 34 dated 27.11.2006 has dismissed such application on the ground that the defendant no. 2 Beekay Automobiles is not a party to the arbitration agreement and that the entire subjectmatter of the suit is not the subject-matter of the arbitration agreement. THErefore, it is contended that such an order is not sustainable in law inasmuch as it amounts to denial of a statutory right conferred upon a party to an agreement under Section 8 of the Arbitration and Conciliation Act, 1996.

(3.) LEARNED Lawyer for the plaintiff/ opposite party on the contrary has claimed that the petitioners have not approached this Honble Court with clean hands and suppressed material facts and withheld vital documents which would be evident from the series of facts narrated in paragraphs 3(a) to 3(k) of the affidavit-inopposition filed by him. As the parties to the Title Suit No. 181 of 2004 and parties to the aforesaid agreement are not same the learned Court below has rightly dismissed the application which should not be interfered with. In fact, the plaintiff/ opposite party no. 1 withdrew the earlier suit and filed a fresh suit in order to incorporate some subsequent events in the plaint to avoid future completion and multiplication of suits. In such case the question of granting leave by the Court at the time of withdrawal of the earlier suit being Title Suit NO. 99 of 2004 was not a legal necessity. He has referred to and relied upon the principles laid down in AIR 1985 P&H 219 (Giridhari Lal Bansal Vs. The chairman, Bhakra Bes Management Board & Ors.), AIR 2002 Cal 22 (Anadi Mohan Rashit & Ors. Vs. Nalin Sarkar Street School & Ors.)AIR 1992 Ker 85 (P.A. Muhammed Vs. Central Bank & Anr.) etc. in support of such contention.