This petition is preferred under Article 227 of Constitution of India for seeking following prayers:
26-A That the Hon'ble Court be pleased to issue an appropriate writ, order or direction directing the learned trial Court to decide the application at Exh.12 dated 13.3.2012 (Annexure -A) before proceeding further with the Special Summary Suit No. 9/2012.
B. That pending the hearing and final disposal of the present petition . Hon'ble Court be plesed to stay the further proceedings of Special Summary Suit No.9 of 2012 pending in the Court of learned Principal Senior Civil Judge, Vadodara C. For such other and further reliefs as are deemed fir and proper in the facts and circumstances of the case.
Learned advocate Mr.Barot appearing for the petitioner urged this Court that Exh.12 dated 13.3.2012 is preferred inter alia urging the Court to refer the parties to the arbitration in accordance with the arbitration clause contained in the agreement . He has also further requested that the hearing of the present application was requested in priority however, till date this application has not been heard. He further insisted that it is utmost necessary for the Court to decide an application u/s. 8 of the Arbitration and Conciliation Act as there is mandate of the Supreme Court to that effect as held in case of Hindustan Petroleum Corpn Ltd. Vs. Pinkcity Midway Petroleums reported in (2003) 6 SCC 503 . The said judgement lays down that whether arbitration clause exists, Court has a mandatory duty to refer dispute arising between the contracting parties to the Arbitrator. Civil Court has no jurisdiction to continue with the suit once an application under Section 8 has been filed. Learned advocate further urged that the Court need to necessarily decide the application moved by the petitioner herein prior to proceeding with any other application.
Per contra, learned advocate Mr.Thakkar appearing on caveat urged this Court that this ratio would not apply to the case instituted under Order 37 of CPC as otherwise the very object of the suit would be marred. He further urged that while deciding the summons for judgement and in considering request for leave to defend, Court can take into consideration this contention of reference to the arbitration as one of the defences. However, insistence to hear this application prior to hearing of summons for judgement is not contemplated under the law.
As can be noted from the submissions of the learned advocates for the parties as also on examination of the record it is to be noted that an application u/s. 8 of the Arbitration and Conciliation Act, 1996 has been preferred in Summary Suit No. 9 of 2012 dated 13.3.2012 and endorsement is made by the Court that copy be given to the other side and the matter is fixed for hearing. There is no order of trial Court on this application which this Court requires to scrutinize. There does not appear to be any order either to proceed with this application or not to proceed with the same prior to deciding summons for judgement or to adjudicate the said application at a future date. In other words, as trial Court has not opined at all either to proceed with or not to proceed with the said application prior to hearing Exh.18 and therefore obviously the merit of such application is yet not decided. It is pre-matured for this Court to entertain this petition and direct the hearing of this application to the trial Court as deciding this petition would tantamount to adjudicating the claim of the parties at this stage, when the trial Court is yet to determine the issue. It would not be desirable in supervisory jurisdiction particularly in absence of any specific order denying the request of proceeding with Exh.12 .
Under the circumstances, parties are relegated to the trial court for them to make a request of hearing of application Exh.12, keeping the rights of the both the parties open for raising all the possible contentions available under the law. Either side shall be at liberty to approach this Court in the event of any grievance in respect of any order by the Court on merits. This petition stands disposed of in the above terms.
Direct service is permitted.
(Ms.Sonia Gokani,J) bina Top