(July 27, 2001) 2001 (TLS)125315

2001-DLT-93-222 :: 2001-AD (Del)-6-297

SHIVNATH RAI HAR NARAIN Vs. Italgrani SPA

J. D. Kapoor

( 1 ) THIS is an application under Order 7 Rule 11 CIVIL PROCEDURE CODE and Section 45 of the Arbitration and Conciliation Act, 1996 assailing the maintainability of the suit.

( 2 ) INDISPUTABLY, provisions of Order 7 Rule 11 CIVIL PROCEDURE CODE bar the maintainability of the suit; firstly where it does not disclose a cause of action; secondly where the relief claimed is order valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; thirdly where the relief claimed is properly valued but the plaint is written upon paper insufficiently, stamped and forthly where the suit appears from the statement in the plaint to be barred by any law.

( 3 ) SECTION 45 of the Arbitration and Conciliation act, 1996 (in short act ) is of mandatory nature and casts/obligation upon the Judicial authority when seized of an action in a matter in respect of which an arbitration agreement subsists to refer parties to arbitration. It provides as under :-

"45. Power of judicial authority to refer parties to arbitration: Notwithstanding anything contained in part I or in the Code of Civil procedure, 1908 (5 of 1908), a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. "

( 4 ) AS it is apparent from the aforesaid provision, it is only in three eventualities that the judicial authority can entertain the petition. These are; firstly the agreement is null and void; secondly it is incapable of being performed and thirdly if it is inoperative.

( 5 ) THE main premise of it he contention of the learned counsel f. or the defendant is the fax message sent by the plaintiff to the defendant which is as under:- italgrani s. p. a. SHIVNATH RAI HARNARAIN (INDIA ) CO. a-8. BHAGWAN DASS,nagar, new DELHI-110026-INDIA adoendum DATED 29/9/1994 to CONFIRMATION OF CONTRACT, DATED 09/9/1994 sellers SHIVNATH RAI NARNARAIN (INDIA) CO;, a-8 , BHAGWAN DASS NAGAR, NEW DELHI" 110026 INDIA buyers ITALGRANI SPA, 40vi MEDINA~80133 NAPLES italy it IS FURTHER AGREED THE FOLLOWING TERM:- other CONDITIONS : ALL OTHER TERMS AND CONDITIONS NOT IN contradiction WITH THE ORDER CONTRACT terms TO BE AS PER G. A. F. T. A. RULES 64/125 AND ITS SUCCESSIVE AMENDMENTS in FORCE AT TIME AND PLACE OF CONTRACT date WHICH THE PARTIES ADMIT THAT THEY have KNOWLEDGE AND NOTICE. SELLERS BUYERS partner ITALGRANI S. p. a mauro AMBROSIO consigliere

( 6 ) THIS copy has been duly certified by Indian consulate. However on prima facie and naked eye view, signatures of the partner on this fax message and the signatures appearing on the plaint appear to be different. Even if it is assumed that the aforesaid fax was dispatched by the plaintiff but the fact remains that plaintiff has disputed not only the fax emphatically but also its signatures thereon.

( 7 ) NOW the question arises whether Part II Chapter i of Section 45 pertaining to Enforcement of Certain foreign Awards New York Convention Awards, bar the suit filed by the plaintiff or not. Section 44 of Part II provides as under:- 44. Definition:- In this Chapter, unless the context otherwise requires, "foreign award" means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960-

(A) in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and

(B) in one of such territories as the central Government, being satisfied th