PINKCITY DEVELOPERS PRIVATE LIMITED Vs. SHYAM BIHARI GOYAL

JUDGEMENT

(1.) THE present revision petition filed under Sec. 115 of C.P.C. is directed against the order dt. 16.01.2013 passed by the Additional Civil Judge (Junior Division) & Metropolitan Magistrate East, Jaipur Metropolitan, Jaipur (hereinafter referred to as "the trial Court") in Civil Suit No. 53/2010, whereby the trial Court has dismissed the application filed by the petitioner -defendant No. 1 seeking rejection of the plaint under Order VII Rule 11 of C.P.C. It has been sought to be submitted by the learned counsel for the petitioner that there was an arbitration agreement between the plaintiff and defendant, and the said agreement was also produced by the respondent -plaintiff alongwith the plaint, and therefore, the suit filed by the respondent -plaintiff was not maintainable in the eye of law. Pressing into service, the provisions contained in Section 5 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the said Act"), he has submitted that the extent of judicial intervention has been prescribed in the said Act, and accordingly the Judicial Authority cannot intervene in the matters governed by the said Act. However, the learned counsel for the respondent No. 1 -plaintiff supporting the impugned order passed by the trial Court, submitted that the petitioner -defendant has already filed the written statement in the suit, and has also not filed any application under Sec. 8 of the said Act for preferring the disputes to the Arbitrator. According to him, the suit being not barred under any law, the trial Court has rightly dismissed the application of the petitioner.

(2.) HAVING regard to the submissions made by the learned counsel for the parties, and to the impugned order passed by the trial Court, it appears that the petitioner -defendant had filed the application under Order VII Rule 11(d) of C.P.C., seeking rejection of the plaint on the ground that the suit was barred under the provisions contained in the said Act. Though, it has been sought to be contended by the learned counsel for the petitioner that in view of Section 5 of the said Act, the suit was barred, the said submission cannot be accepted. Section 5 of the said Act prescribes the extent of judicial intervention to the effect that in the matters governed by the part I of the said Act, no Judicial Authority shall intervene except as provided in the said part of the Act. The said Section itself does not bar filing of the suit. What is required for the purpose of rejecting the plaint under Order VII Rule 11(d), is that the suit must appear from the averments made in the plaint to be barred under any law. As a matter of fact, the petitioner -defendant should have applied to the trial Court under Sec. 8 of the said Act for preferring the disputes to the Arbitrator, if according to him there was an arbitration agreement between the parties. The said application having not been filed by the petitioner, and on the contrary has already filed the written statement in the suit, the present application under Order VII Rule (d) of C.P.C. has been rightly dismissed by the trial Court. In that view of the matter, the Court does not find any substance in the present revision petition. The petition, therefore, is dismissed.