KAUSHIK BISWAS Vs. INDUSIND BANK LTD.

JUDGEMENT

(1.) This appeal is at the instance of a defendant in a proceeding under Sec. 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against the Order No. 5 dated 21st July, 2008 passed by the learned Judge, Seventh Bench, City Civil Court at Calcutta in Miscellaneous Case No. 5310 of 2008 thereby refusing to stay the operation of the earlier order dated 7th July, 2008 by which an ad interim Receiver was appointed.

(2.) Being dissatisfied, the defendant has come up with the present appeal. Mr Sen, the learned advocate appearing on behalf of the appellant, has taken a pure question of law in support of this appeal. According to Mr Sen, even if it is assumed for the sake of argument that all the statements made in the application under Sec. 9 of the Act was true, the learned Trial Judge was not justified in appointing a Receiver over the property where the alleged agreement incorporating the clause of arbitration was not signed by the plaintiff itself. Mr Sen draws our attention to the application filed before the learned Trial Judge that the Xerox copy of the alleged agreement shows that the alleged agreement containing arbitration clause was signed only by the defendant and not signed by the plaintiff. According to Mr Sen, if the agreement is signed not by both the parties but only by the defendant, the same cannot be said to be a valid agreement for arbitration and, therefore, on the face of such document, the learned Trial Judge ought to have dismissed the application. In support of such contention Mr Sen relies upon two decisions of this Court; one in the case of ABN Amro Bank v/s. Saswata Sen reported in, 2000 CWN 751 and the other, in the case of Tata Engineering & Locomotive Ltd. v/s. Samir Biswas and Ors. reported in, 2000(2) CLJ 494.

(3.) Mr Mitra, the learned advocate appearing on behalf of the respondent, has, on the other hand, supported the order impugned and has contended that this Court at this stage should not interfere with the order appointing Receiver before the final hearing of the said application where the appellant will be entitled to file written objection. According to Mr Mitra, as provided in Sec. 7 of the Act, an arbitration agreement should be deemed to be in writing, if it is contained in a document signed by the parties or is manifest from exchange of letters, telex, telegrams or other means of telecommunications which provide a record of the agreement or an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. Mr Mitra contends that in this case, signature of the appellant in the document is apparent. It further appears that his client, the other party to the agreement, has not disputed such agreement and that is why referred the matter to the arbitration, as would appear from the letter written by his client to the arbitrator concerned. By referring to such letter, which is also part of the application under Sec. 9 of the Act, Mr Mitra contends that notwithstanding the fact that his client has not signed in the said document but is signed by the defendant alone, his client having accepted the existence of such arbitration, the same should be treated to be a valid agreement in writing.