HDFC BANK LIMITED Vs. TARA SINGH

JUDGEMENT

(1.) THROUGH this petition, the petitioner -Bank is challenging the order dated 23.3.2007 vide which the learned Civil Judge (Junior Division), Jalandhar has dismissed the application moved by the petitioner -Bank under Sections 8 and 11 of the Arbitration Act.

(2.) IT is the contention of the petitioner -Bank that as per the Agreement dated 1.9.2004 entered into between the petitioner -Bank and the respondent -plaintiff, there being arbitration clause as contained in Clause 29 of the said Agreement, the matter should have been referred to the Arbitrator as per the said Agreement. Clause 29 of the Agreement reads as follows:

(3.) NOW a suit has been preferred by the plaintiff -respondent claiming damages for a period during which the truck of the plaintiff -respondent remained in possession with the defendant -petitioner i.e. from 29.07.2006 to 9.8.2006. The counsel for the petitioner contends that these damages, which the respondent -plaintiff is claiming, are arising out of the Agreement dated 1.9.2004, therefore, the application under Section 8 of the Arbitration Act was required to be allowed and the matter should have been referred to the Arbitrator as per the Clause 29 of the Agreement. He relies on Clause 13, which relates to events of default to contend that if the borrower fails to pay any sum due from him then as per Clause 17, the Bank was entitled to take possession of the vehicle with special reference to Clause 17.2(i) and 17.3. He further contends that in the light of these provisions, the Bank is authorized to take in custody the truck and the dispute would arise from the Agreement dated 1.9.2004. He relies on the judgment of the Hon'ble Supreme Court in the case of Rashtriya Ispat Nigam Limited and Anr. v. Verma Transport Company Civil appeal No. 3420 of 2006 decided on 8.8.2006 and India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. Arbitration Petition No. 18 of 2005 decided on 8.3.2007 to contend that in case, there is a clause for reference to the Arbitrator in the agreement, that matter is required to be referred to the Arbitrator. He further relies upon a judgment of this Court in the case of Haryana State Electricity Board v. to contend that if a dispute arises and such dispute falls within the Agreement, the matter is required to be referred to the Arbitrator. He further relies upon the judgment of this Court in Bathinda Construction Company v. to contend that all disputes between the parties to the contract were required to be referred to the Arbitrator except such disputes, which are excluded specifically, and, therefore, the matter should have been referred to the Arbitrator by the trial Court.