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Supreme Court of India
R.V. RAVEENDRAN & MARKANDEY KATJU
Shin-Etsu Chemical Co. Ltd.
Versus
Vindhya Telelinks Ltd. & Others
Civil Appeal No.4998 of 2007
Decided on: 27-03-2009
Constitution of India,1950 - Article 136 - Civil Procedure Code,1908 - Sections 5 and 8 - Order 7 - Rule 11 - Long Term Sale & Purchase Agreements - Supervisory jurisdiction - Appeals by special leave are filed against order passed by Additional District Judge Madhya Pradesh aggrieved by the remand while allowing in part Civil Appeal filed by appellant with direction to reconsider applications of appellant Section of Arbitration and Conciliation in terms of Judgment this Court in Shin-Etsu Chemical Co.Ltd - Vindhya Telelinks Ltd - and Optic Fibre Goa Ltd - Respondents first of two appeals filed Civil Suit renumbered Civil Suit on file of Civil Judge Class Rewa Madhya Pradesh for declaration that Long Term Sale and Purchase Agreement entered between appellants and them was null void and for permanent injunction restraining appellant first defendant suit from relying upon/invoking/giving effect any term of the said agreement - Similarly Birla Ericsson Optical Ltd and Optic Fibre Goa Ltd - respondents second of these appeals filed Civil Suit (renumbered Civil in said court for similar reliefs - On entering appearance appellant filed applications under order Rule Code of Civil Procedure read with Sections Act seeking dismissal of suits and a direction for referring parties to arbitration –Held, Court against an appellate order passed Section Arbitration maintainable - There no express provision in Arbitration Act putting an embargo against filing a revisional application against appellate order Section of Act - Arbitration Act has put embargo on filing any second appeal from appellate order Section Act - Arbitration Act special statute having limited application relating to matters governed by said Act - Such special statute therefore must have application as provided for in said statute revisional jurisdiction of High Court Code any other statute therefore shall not stand superseded Arbitration Act does not contain any express bar against exercise of revisional power by High Court provided exercise of such revisional power does not mitigate against giving effect Provisions Arbitration - Court has repeatedly stressed Article is not intended permit direct access this Court where other equally efficacious remedy available and the question involved not any public importance and Court will not ordinarily exercise its jurisdiction Article unless appellant has exhausted all other remedies open to him - Therefore contention that order of Civil Judge - Division rejecting petition section could only be challenged by recourse Article untenable - Decision in SBP did not affect maintainability of writ petition filed appellant before High - Leave Petition was filed on and Court ordered issue notice and subsequently granted leave on Court are conscious of the fact that matter has been pending before this Court for more than two years and relegation to alternative remedy will further delay the consideration of issue - But is inevitable in circumstances - Though provides this Court has discretion grant leave to appeal against any order judgment or determination any cause by any court this Court has been consistently following practice of not entertaining appeals directly from orders district courts or court subordinate thereto if alternative remedy way of appeal or revision was available before High Court - In after scope revision section was curtailed by Amendment with effect availability of even the remedy by invoking supervisory jurisdiction - Appeal dismissed
Judgment
R.V. Raveendran J.
1. These appeals by special leave are filed against the order dated 30.11.2006 passed by the IV Additional District Judge, Rewa, Madhya Pradesh, aggrieved by the remand, while allowing in part Civil Appeal Nos.24 and 25 of 2006 filed by the appellant, with a direction to reconsider the applications of the appellant under Section 45 of the Arbitration and Conciliation Act, 1996 (‘Act' for short) in terms of the Judgment of this Court in Shin-Etsu Chemical Co.Ltd. v. Aksh Optifibre Ltd. & Anr. 2005 (7) SCC 234.
2. Vindhya Telelinks Ltd. and Optic Fibre Goa Ltd. - respondents 1 & 2 in the first of the two appeals filed Civil Suit Nos. 31-A of 2002 (renumbered as Civil Suit No.38A of 2004) on the file of the Civil Judge, Class-I, Rewa, Madhya Pradesh for a declaration that the Long Term Sale and Purchase Agreement entered between appellants and them, was null and void and for a permanent injunction restraining the appellant (first defendant in the suit) from relying upon/invoking/giving effect to any term of the said agreement. Similarly, Birla Ericsson Optical Ltd. and Optic Fibre Goa Ltd - respondents 1 & 2 in the second of these appeals, filed Civil Suit No.30A of 2002 (renumbered as Civil Suit No.39A of 2004) in the said court for similar reliefs.
3. On entering appearance, the appellant filed applications under order 7 Rule 11 of Code of Civil Procedure read with Sections 5 and 8 of the Act seeking dismissal of the suits and a direction for referring the parties to arbitration (in terms of the arbitration agreement contained in the Long Term Sale & Purchase Agreements dated 23rd and 24th January, 2001). The said applications were dismissed by the trial court on 14.07.2003. The revision petitions filed by the appellants were dismissed by the Madhya Pradesh High Court on 26.08.2003. On further appeals, this court in Civil Appeal Nos.6210-6211 of 2004, by order dated 7.12.2005, set aside the orders of the trial court and High Court and remanded the matters to the trial court to decide the matters afresh treating the applications filed by the appellant herein (under Order 7 Rule 11 CPC read with sections 5 and 8 of the Act) as applications under Section 45 of the Act and dispose them in terms of the decision in Aksh Optifibre Ltd.(supra). In pursuance of it, the trial court considered the applications filed by the appellant as applications under Section 45 of the Act and passed a common order dated 31.3.2006 thereon, holding that the arbitration clause on the basis of which the appellant had filed an application under Section 45 of the Act was prima facie inoperative and in such a situation, the parties cannot be referred to arbitration and the matter should be proceeded with and decided on merits by the court.
4. The said order of the trial court was challenged by the appellant before the IV Additional District Judge, Rewa who by the impugned orders dated 30.11.2006 allowed the appeals, set aside the order of the trial court, and remitted the matters to the trial court with a direction to consider the applications of the appellant under section 45 of the Act, in accordance with the procedure and principles laid down in Para 111 of the decision in Aksh Optifibre Ltd. (supra). The said orders of the Additional District Judge are challenged in these appeals by special leave under Article 136 of the Constitution of India. The appellant contends that as neither the trial court nor the appellate court recorded a finding that the arbitration agreement was null, void, inoperative or incapable of being performed, the appellate court ought to have merely allowed the appeals, and ought not to have remanded the matters to the trial court for fresh consideration.
5. The respondents raised a preliminary objection that these appeals are not maintainable and if the appellant was aggrieved by the orders of the learned District Judge in the appeals, the appropriate remedy was to challenge the same before the High Cou
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