This petition is filed against the order in I.A.No.16097 of 2005 in O.S.No.4237 of 2005 on the file of the XI Assistant City Civil Court, Chennai, dated 13.10.2005.
2. Heard the learned counsel appearing for the petitioners.
There is no representation for the respondent.
3. The respondent filed a suit for permanent injunction.
Originally there was an agreement between the petitioner and the respondent dated 31.10.2004, in which (Article 22) says that:
"(a) All disputes, differences any/or claim arising out of this agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996, or any Statutory amendments thereof and shall be referred to the Arbitrator shall be final and binding on the borrower to this agreement.
(b) The venue of arbitration proceedings shall be at Chennai.
(c) The arbitrator so appointed herein above, shall also be entitled to pass an Award on the hypothecated asset and also on any other securities furnished by or on behalf of the Borrower."
4. While pendency of the agreement, the respondent/plaintiff has filed the suit for the above prayer.
5. During the pendency of the suit, the petitioner/defendant has filed in I.A.No.16097 of 2005 in O.S.No.4237 of 2005, under Section 8 of the Arbitration and Conciliation Act, 1996, praying the Court to dismiss the suit with exemplary cost and to direct the respondent to resort to Article 22 of the said loan agreement by referring the matter to the Arbitration of an Arbitrator as prescribed under Article 22 of the said loan agreement.
6. Considering the submissions of both sides, the learned XI Assistant City Civil Judge, Chennai, in paragraph Nos.3 and 4 of the order dated 13.10.2005 made in I.A.No.16097 of 2005 in O.S.No.4237 of 2005 has stated as follows:
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7. In the said order, the learned Judge has not agreed for arbitration as Section 8 of the said Act is not applicable. The order of the learned Judge is totally wrong, since without considering the agreement between the petitioner and the respondent dated 31.10.2004, in Clause 22 which states that all disputes could be solved through the Arbitration Clause, the order has been passed. Thus being the case, now the learned Judge says that unless both the parties agree for the matter being referred to Arbitration it could not be done.
8. Considering the above facts and circumstances of the case, this Court is inclined to allow this petition. Accordingly, the petition is allowed by setting aside the order in I.A.No.16097 of 2005 in O.S.No.4237 of 2005 on the file of the XI Assistant City Civil Court, Chennai, dated 13.10.2005 and the suit in O.S.No.4237 of 2005 is struck off from the file of the XI Assistant City Civil Court, Chennai and the respondent/plaintiff is directed to take action as per Clause 22 of the Agreement dated 31.10.2004. No costs. Consequently, connected miscellaneous petition is closed.
17.11.2017 Index:Yes/No Internet:Yes/No ub To The XI Assistant City Civil Court, Chennai.
M.V.MURALIDARAN, J.
ub CRP(PD).No.1489 of 2005 17.11.2017