BHAGYALATA DAS Vs. EAST COAST RAILWAY AND ORS.

JUDGEMENT

(1.) Petitioner in this application has challenged the order dated 9.12.2010 passed by learned Addl. Civil Judge (Sr. Divn.), Puri in C.S. No. 32/226 of 2002/2005 allowing an applications filed by the defendants to stay the suit and to direct the parties to implement Clause-29 of the agreement by referring the matter to the Arbitrator in compliance of the agreement entered into by the parties. The facts narrated in the present case are as follows:--

(2.) Before expiry of the contract i.e. 13.8.2003 petitioner has filed W.P.(C) No. 5325 of 2003 against the opposite parties to allow her to complete five years term instead of three years. In the said writ petition she has filed Misc. Case No. 5013 of 2003 to stay issuance of fresh tender call notice for a period of beyond 13.8.2003 wherein this Court has directed to maintain status quo as on date. Thereafter she continued the work beyond the contract period. This Court while disposing of the writ petition on 2.8.2004 directed that what-so-ever the bills are submitted for the work discharged from 14th August, 2003 till the date of disposal of the writ petition shall be considered by the opposite parties and if the petitioner is found to be entitled to any payment there under the same shall be paid to her within a period of two months from the date of communication of the order. Pursuant to the said direction of this Court the bills of the petitioner has been considered after deduction as per the agreement.

(3.) Being not satisfied with the sanction bill the present petitioner as plaintiff has filed C.S. No. 32/226 of 2002/2005 for recovery of money with other consequential relief. The present opposite parties appeared in the suit and prayed for time to file the written statement. Subsequently defendants were set ex parte and suit was posted to 9.2.2007 for ex parte hearing. On 9.2.2007 defendants have filed a petition to set aside the ex parte order and to accept the written statement filed by the defendants. A separate petition also filed by the defendants to stay the suit and to direct the parties to implement the arbitration clause of the agreement. On the same date defendants have also filed an application to drop the suit as the same is not maintainable in view of Clause 29 of the agreement executed by the parties and the provisions of the Arbitration and Conciliation Act, 1996. Objection was filed by the plaintiff to the aforesaid applications taking a stand that defendants have appeared in the suit and availed several adjournments for filing the written statement. Defendants have not filed the original agreement or its certified copy not being accompanied with the petitions. The other ground of objection of the plaintiff was that the cause of action of the suit arose within the jurisdiction of the court. The Arbitration and Conciliation Act, 1996 will not ousted the jurisdiction of the court. It is also contended that plaintiff has not sought for any relief relying on the Arbitration Clause and the alleged Arbitration Clause is illegal, inoperative, inequitable, fraudulent and void which is not binding to the plaintiff.