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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAJNESH OSWAL
S. Charanjeet Singh, S/O Late S. Hari Singh – Appellant
Versus
Ut of J&K Th. Director Horticulture (P&M) Department of Horticulture Planning – Respondent
JUDGMENT :
1. This appeal is directed against the order/judgment dated 30.10.2023 passed by the court of learned Principal District Judge, Jammu (for short the "trial court‟) whereby the learned trial court has held the suit preferred by the appellant as not maintainable, with liberty to the parties to approach the nominated arbitrator at the earliest enabling him to settle the dispute inter se parties.
2. The brief facts necessary for disposal of the instant appeal are that a suit came to be filed by the petitioner for declaration to the effect that the contract/agreement dated 30.09.2021 executed between the parties, pursuant to e-NIT No. 39 of 2021-22 dated 03.09.2021 and e-NIT No. 40 of 2021-22 dated 03.09.2021, has frustrated and become incapable of performance, on account of deliberate inaction on part of the respondents to close numerous illegally run eat points/canteens/reharis/dhabas, etc. around and in vicinity of the premises of the appellant with consequential relief of mandatory injunction directing the respondents to refund an amount of Rs. 7,48,650/- deposited by the appellant and to return two FDR of Rs. 40,000/- bearing No. 532825 and 532826 dated 16.09.2021 deposite
The court ruled that raising an arbitration clause in a written statement mandates referral to arbitration, and the trial court erred in appointing a nominated arbitrator from the respondents.
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.
Rejection of plaint – When a statute prescribes to do certain thing in a certain manner, the thing has to be done in same manner or not at all – All other modes are expressly forbidden.
The court held that disputes regarding settled amounts are not arbitrable under the Arbitration and Conciliation Act, 1996, unless specifically covered by the arbitration agreement.
A party's previous unrelated legal action does not waive their right to invoke arbitration if the subsequent application under Section 8 is filed before their first substantive statement in a related....
The court emphasized strict adherence to procedural requirements for references to arbitration under the Arbitration Act, dismissing applications that do not explicitly comply.
Section 8 of the Arbitration and Conciliation Act mandates that an application for arbitration must be made before the first written statement; dismissal of the suit under this section is not permiss....
The court established that a party does not forfeit its right to apply for arbitration under Section 8 even after the expiration of the time to file a written statement, provided there are intervenin....
Participation in a civil suit does not necessarily amount to abandonment of the right to seek resolution of disputes through arbitration. The amenability of relief sought in a civil suit to arbitrati....
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