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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Vijay Bishnoi, J.
Rathi Steel And Power Limited – Appellant
Versus
Raj Lime Products – Respondent
S.B. Civil Writ Petition No. 3358/2022
Decided On : 06-05-2022
EVIDENCE - ARBITRATION AGREEMENT - Indian Evidence Act, Section 65, Section 66, Order 18 Rule 17 C.P.C. - The court discussed the existence of the arbitration agreement between the parties and the dismissal of applications under Sections 65 and 66 of the Indian Evidence Act and under Order 18 Rule 17 C.P.C. The court referred to the peremptory nature of Section 8 of the Arbitration and Conciliation Act, 1996, and the requirement for the court to refer parties to arbitration when there is an arbitration clause in the agreement. The court also highlighted the need for the filing of the original arbitration agreement or a duly certified copy thereof for entertaining an application under Section 8(1) of the Act. The judgment emphasized the mandatory provisions contained under Section 8(2) of the Act and the non-compliance of the same by the appellant. The court's decision was influenced by the finding that the existence of the arbitration agreement between the parties was neither visible nor traceable, and the judgments cited by the petitioner were of no help as the question regarding the existence of the arbitration agreement had already been decided up to the High Court.
Fact of the Case:
The petitioner filed a writ petition under Article 227 of the Constitution of India, aggrieved by the dismissal of two applications under Sections 65 and 66 of the Indian Evidence Act and under Order 18 Rule 17 C.P.C. by the trial court. The applications were related to the existence of an arbitration agreement between the parties and the summoning of the plaintiff for further cross-examination.
Finding of the Court:
The court found that the trial court's dismissal of the applications was not illegal, as the existence of the arbitration agreement between the parties had already been decided up to the High Court. The court also noted that the framing of an additional issue by the trial court pertaining to the arbitration agreement after the rejection of the application under Section 8 of the Act of 1996 would not help the petitioner.
Issues: The issues involved the rejection of applications under Sections 65 and 66 of the Indian Evidence Act and under Order 18 Rule 17 C.P.C. by the trial court, and the contention of the petitioner regarding the existence of the arbitration agreement between the parties.
Ratio Decidendi: The court's decision was based on the finding that the existence of the arbitration agreement between the parties was neither visible nor traceable, and the judgments cited by the petitioner were of no help as the question regarding the existence of the arbitration agreement had already been decided up to the High Court.
Final Decision: The writ petition and the stay petition were dismissed by the court.
JUDGMENT
1. This writ petition (under Article 227 of the Constitution of India) is filed by the petitioner being aggrieved with the order dated 02.12.2021 passed by the learned Commercial Court, Jodhpur (hereinafter to be referred as 'the trial court') whereby, two applications preferred by the petitioner under Sections 65 and 66 of the Indian Evidence Act and under Order 18 Rule 17 C.P.C. respectively have been dismissed.
2. Brief facts of the case are that the respondent herein filed a suit under the provisions of Order 37 C.P.C. for recovery of a sum of Rs.37,71,943/- against the petitioner. After service of summons, the petitioner-defendant put in appearance and filed an application under Section 8(1) of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as 'the Act of 1996') before the Addl. Distt. Judge No.2, Jodhpur Metro (for short 'the court below') for referring the parties to arbitration claiming that there is an arbitration agreement between the parties. The said application was objected by the respondent-plaintiff before the court below, however, the same was dismissed vide order dated 23.08.2018.
3. Being aggrieved with the order dated 23.08.2018 passed by the court below, the petitioner-defendant preferred S.B. Civil Misc.
4. Appeal No.3353/2018 before this Court, however, a Coordinate Bench of this Court has dismissed the said appeal vide judgment dated 04.01.2019 and affirmed the order dated 23.08.2018 passed by the court below.
5. It appears that against the judgment dated 04.01.2019 passed by the Coordinate Bench of this Court, the petitioner had preferred a Special Leave Petition before the Hon'ble Supreme Court, which came to be dismissed as withdrawn with liberty to the petitioner to file a review petition before this Court. As per counsel for the petitioner, the petitioner has already preferred review petition before this Court which is pending consideration.
6. On 02.03.2021, the petitioner preferred two applications before the trial court, one was under Sections 65 and 66 of the Indian Evidence Act with a prayer to allow him to lead secondary evidence regarding the existence of purchase order dated 31.05.2013 (containing arbitration agreement on the back side) and another was under Order 18 Rule 17 C.P.C. with a prayer to summon the plaintiff for further cross-examination by him.
7. The trial court after hearing the counsel for the parties has dismissed both the applications while observing that so far as the question regarding the existence of arbitration agreement between the parties is concerned, the same has already been decided by the trial court on 24.12.2018 while deciding the application under Section 8 of the Act of 1996, which later on was affirmed by the High Court also and, therefore, there is no requirement for the trial court to decide the said issue further and in such circumstances, the prayer of the petitioner to lead secondary evidence in respect of the arbitration agreement cannot be granted. While observing this, the trial court has also dismissed the application under Order 18 Rule 17 C.P.C. and rejected the prayer of the petitioner for re-summoning the plaintiff for further cross-examination.
8. Assailing the order dated 02.12.2021, learned counsel for the petitioner has argued that the trial court has grossly erred in rejecting both the applications filed by the petitioner. Learned counsel has submitted that after rejection of the application under Section 8(1) of the Act of 1996, the trial court itself framed an additional issue No.5A on 19.09.2019 pertaining to the arbitration agreement between the parties.
9. Learned counsel for the petitioner has also argued that when the trial court itself has framed an additional issue pertaining to the arbitration agreement between the parties, the rejection of the application filed by the petitioner under Sections 65 and 66 of the Indian Evidence Act as also the application under Order 18 Rule 17 C.P.C. is illegal and on this c
The central legal point established is that the existence of an arbitration agreement requires a document executed by both parties showing consensus ad-idem, incorporating such a clause.
The judgment establishes the requirement of a written agreement for arbitration, the interpretation of settlement of disputes clauses, and the significance of party conduct in determining the existen....
Point of Law : General law should yield to the special law - 'generalia specialibus non derogant'. In such a situation, the approach shall not be to see whether there is still jurisdiction in the civ....
Section 8 of the Arbitration and Conciliation Act, 1996 has a mandatory effect, and once the conditions are fulfilled, the court is obligated to refer the parties to arbitration.
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