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2017 Supreme(Cal) 708
IN THE HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, SAMAPTI CHATTERJEE, JJ.
Biswanath Ghosh - Appellant
Versus
M/s. Hijal Kanya Co-Operative Housing Society Ltd. - Respondent
F.M.A.T. No. 1199 of 2016 and CAN No. 11635 of 2016
Decided On : 23-06-2017
For the Appellant : Mr. Supratick Syamal, Mr. Gourab Ghosh
For the Respondent: Mr. Arup Kumar Chatterjee, Mr. Pinaki Brata Ghosh, Mr. Firoj Uddin Islam, Ms. Susmita Majumdar
The main legal point established is that disputes falling within the purview of a specific statute can still be resolved through arbitration under the Arbitration & Conciliation Act, 1996, and that an arbitration agreement can be enforceable despite non-registration of the underlying contract.
Headnote:
Arbitration - Housing Co-operative Society - Arbitration & Conciliation Act, 1996, Section 9
Fact of the Case:
The appellant, a contractor, filed an application under Section 9 of the Arbitration & Conciliation Act, 1996 seeking an injunction to restrain the Housing Co-operative Society from appointing another contractor for completing the construction work. The application was contested, and the Trial Judge dismissed it, citing the West Bengal Co-operative Societies Act and the unenforceability of the arbitration agreement.
Finding of the Court:
The Court found that the dispute was capable of resolution through arbitration under the Arbitration & Conciliation Act, 1996, despite being within the purview of the West Bengal Co-operative Societies Act. The Court also held that the arbitration agreement was enforceable, and an injunction should be passed to prevent the engagement of another contractor until the extent of construction executed by the appellant was measured and verified.
Issues: The issues involved the enforceability of the arbitration agreement, the jurisdiction of the court under the Arbitration & Conciliation Act, 1996, and the applicability of the West Bengal Co-operative Societies Act.
Ratio Decidendi: The Court held that despite the dispute falling within the scope of the West Bengal Co-operative Societies Act, it was still capable of resolution through arbitration under the Arbitration & Conciliation Act, 1996. The Court also determined that the arbitration agreement was enforceable and that an injunction was warranted to protect the appellant's interests.
Final Decision: The impugned order was set aside, and the appeal was allowed. An injunction was passed restraining the Housing Co-operative Society from appointing another contractor until the extent of construction executed by the appellant was measured and verified.
Jyotirmay Bhattacharya, J.
We are informed by the learned advocate appearing for the appellant that court fees on Vakalatnama have been paid on 10th January, 2017 vide filing no. A-733. The defect in the appeal is, thus, rectified.
2. This first miscellaneous appeal is directed against an order being No. 17 dated 2nd September 2016 passed by the learned District Judge, North 24-Parganas, Barasat in Misc. Case No. 225 of 2015 (Arbitration) arising out of an application under Section 9 of the Arbitration & Conciliation Act, 1996 filed by the appellant/applicant.
3. By the impugned order, the appellant's application under Section 9 of the Arbitration & Conciliation Act was dismissed on contest without cost. The appellant/applicant felt aggrieved. Hence, he has filed the instant first miscellaneous appeal before this Court.
4. Let us now consider the merit of the instant appeal in the facts of the instant case.
5. The respondent, namely, M/s. Hijal Kanya Co-operative Housing Society Limited is a Housing Co-operative Society. The said Housing Co-operative Society appointed the appellant/applicant as a contractor for constructing multi-storied building on the land belonging to the said Co-operative Society. An agreement was entered into between the said Housing Cooperative Society and the appellant/applicant being the contractor crystallising their rights and obligations.
6. Admittedly, in terms of the said agreement, the appellant/applicant has raised some constructions on the land belonging to the said Co-operative Society and the bills were raised from time to time as per the agreement by the said contractor. Some of such bills raised by the said contractor were paid but other bills raised by the said contractor against the work executed by him have not been paid by the said Housing Co-operative Society. Thus, a dispute arose as to the contractor's monetary claim between the parties.
7. Admittedly, the agreement which was entered into between the appellant/applicant and the said Housing Co-operative Society contains an arbitration clause wherein it is stated as follows :-
"Both parties have agreed that if any dispute arises during construction of the building and/or after construction of the building by and between the parties, the same will be referred to any arbitration under the Arbitration & Conciliation Act, 1996."
8. Though initially the appellant/applicant filed a civil suit against the said Housing Co-operative Society seeking declaration of his right to continue with the construction as per the said agreement, but the said title suit was ultimately withdrawn by the appellant/ applicant after filing the application under Section 9 of the Arbitration & Conciliation Act before the court below.
9. In the application under Section 9 of the Arbitration & Conciliation Act, the appellant/applicant prayed for an injunction for restraining the Housing Cooperative Society from appointing and/or engaging any other contractor and/or his men and agents to execute the rest of the construction work of the schedule property and also for passing an interim order in similar term and nature pending disposal of the said application.
10. The said relief was claimed by the appellant/applicant by alleging that without settling the dispute between the parties regarding the monetary claim of the appellant/applicant arising out of the work executed by him as per the contract, the said Housing Co-operative Society is now taking steps for appointing other contractor for execution of the unfinished work of construction.
11. The said application under Section 9 of the Arbitration & Conciliation Act filed by the appellant/applicant was contested by the said Housing Co-operative Society by filing objection.
12. It was contended by the said Housing Cooperative Society that the said application under Section 9 of the Arbitration & Conciliation Act is not maintainable as the appellant/applicant is guilty of suppression of material facts relating to institutio
