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2007 Supreme(MP) 1064
2008(1) JLJ 297
U.C. Maheshwari, J.
M.P. State Civil Supplies Corporation Ltd. v. Marain Agrawal
Miscellaneous Appeal No. 2790 of 2004 (Jabalpur): against the judgment of V Additional District Judge, Bhopal, passed in Arbitration Case No.25 of 2003; Decided on 30.10.2007.
K.S. Wadhwa for appellant;
A.K. Mishra with Ankit Saxena for respondent.
Headnote:Civil P.C., 1908 -- S.11, Expl. IV and O.2 R.2 -- cause of action to prefer subsequent reference available when first reference was made to arbitrator -- no subsequent reference thereafter is maintainable -- same is hit by constructive res judicata as well as relinquishment under O.2 R.2.
An agreement took place between the parties on date 21.11.1998. According to it, the respondent had to procure 1,000 metric tons of soyabean for the appellant from Ujjain District in the kharif year 1998-99. During subsistence of such contract, on arising some dispute, the same was referred to the sole arbitrator in the month of March 1999 by the appellant. The same was resolved by the award dated 25.10.1999 by the arbitrator. Such arbitral award is not under dispute in the present litigation. Subsequent to the aforesaid award, the respondent submitted his other dispute on date 24.6.2002 before the aforesaid sole arbitrator, the Commissioner-cum-Director, Food, Civil Supplies and Consumer Products, Madhya Pradesh, Bhopal contending that as per the terms of the contract, during subsisting the same, he purchased 11,025 number of gunny bags of worth Rs.2,75,000/for packing of the aforesaid soyabean. Its payment was to be made by the appellant. The same was not made, on which the respondent gave a notice in this regard to the appellant vide dated 19.11.2001 but the same was not complied with. [Para 2
Held : On arising dispute, the same was referred by the respondent to the aforesaid sold arbitrator and the same was resolved by the arbitral award dated 25.10.1999. It is apparent that the dispute regarding price of the gunny bags or its interest was neither claimed nor mentioned in such reference. The same was submitted before the arbitrator on date 24.6.2002. There is no dispute between the parties regarding the earlier award as appeared from the record. [Para 8
The earlier reference was made to the arbitrator in the month of March 1999, therefore, it could be said that the dispute referred by the successive application to the arbitrator was in existence on such day because such payment was not made to the respondent by the appellant. Accordingly, the cause of action of such reference was available to the respondent on referring the earlier dispute. Inspite it, the same was neither mentioned nor referred to the arbitrator. [Para 9
The aforesaid section 11 with its explanation is applicable to the present case and it is undisputed fact that inspite having the cause of action for reference, the present dispute on the date of filing the former dispute the same was not referred to arbitrator by the respondent, therefore, by virtue of the aforesaid provision and it‘s explanation IV, the successive claim could not be entertained either by the arbitrator or the Court. [Para 11
It is apparent that inspite having the cause of action the present dispute was not referred for arbitration while submitting the earlier dispute, thereby the respondent himself did not include his own claim and intentionally omitted and relinquished the same and, therefore, he did not have any right to file the separate reference by showing different cause of action arising out of the same contract the successive reference filed on date 24.6.2002 after disposing of the first reference by award dated 25.10.1999, was neither maintainable nor entertainable. In pursuance of it, the impugned arbitral award and the order of the trial Court are not sustainable. Hence, the same are hereby set aside. AIR 1990 SC 53 followed. AIR 1986 SC 161 distinguished. [Para 13
flfoy izfØ;k lafgrk] 1908 && /kkjk 11 Li"Vhdj.k 4 rFkk vk-2 fu-2 && e/;LFk dks izFke funsZ‘k fd;k x;k rc i‘pkr~orhZ funsZ‘k ds fy, okngsrqd miyC/k && rnqijkar i‘pkr~orhZ funsZ‘k pykus ;ksX; ugha gS && ml ij vkUof;d iwoZ fu.kZ; ds lkFk&gh vk-2 fu-2 ds v/khu R;tu dk vk?kkr gksrk gSA
i{k ds e/; fnukad 21-11-1998 dks djkj gqvk FkkA mlds vuqlkj] izR;FkhZ dks vihykFkhZ ds fy, mTtSu ftys ls [kjhQ o"kZ 1998&99 esa lks;kchu ds 1]000 ehfVªd Vu mikIr djuk FksA ,slh lafonk dh fo|ekurk ds nkSjku] fdlh fookn ds mn~Hkwr gksus ij] og vihykFkhZ }kjk 1999 ds ekZp ekl esa ,dy e/;LFk dks fufnZ"V fd;k x;k FkkA og e/;LFk }kjk iapkV fnukad 25-10-1999 }kjk lqy>k;k x;k FkkA og ek/;LFke~ iapkV fo|eku eqdnesckth eas fookfnr ugha gSA iwoksZDr iapkV ds i‘pkr~] izR;FkhZ us fnukad 24-6-2002 dks ,dy e/;LFk] vk;qDr≶&funs‘kd] [kk|] flfoy iznk; rFkk miHkksDrk mRikn] e/; izns‘k] Hkksiky ds le{k viuk vU; fookn ;g ladFku djrs gq, izLrqr fd;k fd lafokn ds fuca/kukuqlkj] mldh fo|ekurk ds nkSjku mlus iwoksZDr lks;kchu dh iSfdax ds fy, :-2]75]000@& ewY; dh 11]025 cksfj;k¡ Ø; dhaA mldk lank; vihykFkhZ }kjk fd;k tkuk FkkA og ugha fd;k x;k] ftl ij izR;FkhZ us bl laca/k esa lwpuk fnukad 19-11-2001 vihykFkhZ dks nh fdarq mldk vuqikyu ugha fd;k x;kA ¼iSjk 2
vfHkfu/kkZfjr % fookn mn~Hkwr gksus ij] og izR;FkhZ }kjk iwoksZDr ,dy e/;LFk dks fufnZ"V fd;k x;k rFkk og ek/;LFke iapkV fnukad 25-10-1999 }kjk lqy>k;k x;kA ;g izdV gS fd cksfj;ksa dh dher vFkok mlds C;kt ds fookn dk nkok ml funsZ‘k esa u fd;k x;k Fkk u mldk mYys[k gh fd;k x;k FkkA og e/;LFk ds le{k fnukad 24-6-2002 dks izLrqr fd;k x;k FkkA tSlk vfHkys[k ls izdV gksrk gS] i{kdkjksa ds e/; iwoZrj iapkV ds laca/k esa dksbZ fookn ugha gSA ¼iSjk 8
iwoZrj funsZ‘k 1999 ds ekpZ ekl esa e/;LFk dks fd;k x;k FkkA vr%] ;g dgk tk ldrk gS fd i‘pkr~orhZ viosnu }kjk e/;LFk dks fufnZ"V fookn ml fnu vfLrRo esa Fkk D;ksafd vihykFkhZ }kjk izR;FkhZ dks lank; ugha fd;k x;k FkkA rnuqlkj] ,sls funsZ‘k dk okngsrqd izR;FkhZ dks iwoZrj foookn fufnZ"V djus ij miyC/k FkkA ¼iSjk 9
iwoksZDr /kkjk 11] mlds LI‘Vhdj.k lfgr] rRdkyhu ekeys dks ykxw gksrh gS rFkk ;g vfookfnr rF; gS fd iwoZrj fookn Qkby fd, tkus dh rkjh[k dks rRdkyhu fookn funsZ‘k dk okngsrqd gksus ds ckotwn] izR;FkhZ }kjk og e/;LFk dks fufnZ"V ugha fd;k x;k Fkk] vr%] iwoksZDr mica/k rFkk mlds LI‘Vhdj.k 4 ds dkj.k i‘pkr~orhZ nkok e/;LFk vFkok U;k;ky; }kjk xzg.k ugha fd;k tk ldrk FkkA ¼iSjk 11
;g izdV gS fd okngsrqd gksus ds ckotwn iwoZrj fookn izLrqr djrs le; ;g fookn ek/;LFke~ ds fy, fufnZ"V ugha fd;k x;k Fkk] rn~}kjk izR;FkhZ us Lo;a dk nkok lfEefyr ugha fd;k rFkk vk‘k;iwoZd mls yqIr rFkk R;Dr fd;k] vr%] mls mlh lafonk ls mn~Hkwr fHkUu okngsrqd n‘kkZrs gq, i`Fkd~ funsZ‘k Qkby djus dk dksbZ vf/kdkj ugha FkkA ------- fnukad 25-10-1999 ds iapkV }kjk izFke funsZ‘k ds fuiVkjs ds i‘pkr~ fnukad 24-6-2002 dks Qkby fd;k x;k i‘pkr~orhZ funsZ‘k u iks"k.kh; Fkk] u xzkº; gh FkkA mlds vuqlj.k esa] vk{ksfir ek/;LFke~ iapkV rFkk fopkj.k U;k;ky; dk vkns‘k dk;e ugha j[ks tk ldrsA blfy,] os ,rn~}kjk vikLr fd, tkrs gSaA , vkb vkj 1990 ,l lh 161 izHksfnrA ¼iSjk 13
1. On behalf of the appellant, this appeal is preferred under section 37 of the Arbitration and Conciliation Act, 1996 (for short "the Act") being aggrieved by the judgment dated 6.5.2004 passed by V Additional District Judge, Bhopal in Arbitration Case No.25/2003 dismissing the appellant's application filed under section 34 read with section 16 of the Act for setting aside the arbitral award dated 1.4.2003 passed by the sole arbitrator.
2. The factual matrix of the case in short are that an agreement took place between the parties on date 21.11.1998. According to it, the respondent had to procure 1,000 metric tone of Soyabean for the appellant from Ujjain District in the Kharif year 1998-99. During subsistence of such contract, on arising some dispute, the same was referred to the sole arbitrator in the month of March, 1999 by the appellant. The same was resolved by the award dated 25.10.1999 by the arbitrator. Such arbitral award is not under dispute in the present litigation. Subsequent to the aforesaid award, the respondent submitted his other dispute on date 24.6.2002 before the aforesaid sole arbitrator, the Commissioner-cum-Director Food, Civil Supplies and Consumer Products, Madhya Pradesh, Bhopal contending that as per the terms of the contract, during subsisting the same, he purchased 11,025 number of gunny bags of worth Rs.2,75,000/- for packing of the aforesaid Soyabean. Its payment was to be made by the appellant. The same was not made, on which the respondent gave a notice in this regard to the appellant vide dated 19.11.200 I but the same was not complied with. With these averments, the aforesaid dispute was referred to the arbitrator.
3. Reply of the aforesaid claim was filed on behalf of the appellant in which inter alia the claim of the respondent was denied. Besides the above the objection regarding constructive res judicata along with the objection that the subsequent claim is not maintainable after disposal of the first claim especially when the cause of action regarding the referred dispute was arisen before date of filing the first dispute which was filed in the month of March, 1999 in which the alleged dispute was not referred. Considering the case of the parties, the arbitrator passed the award in favour of the respondent and against the appellant. Being dissatisfied, the present appellant preferred an application for setting aside such arbitral award dated 1.4.2003 by mentioning various grounds including the ground of constructive res judicata and the tenability of the subsequent dispute in view of the facts mentioned above while mentioning the case of the appellant.
4. All the grounds and objections taken by the appellant are denied by the respondent by filing its reply dated 4.9.2003.
5. On consideration by affirming the arbitral award of the arbitrator, the appellant's application has been dismissed by the trial Court vide impugned judgment, hence the appellant has come to this Court for setting aside the impugned order as well as the aforesaid arbitral award.
6. Shri K.S. Wadhwa, learned appearing counsel for the appellant assailed the impugned order and award on the ground that such subsequent reference of the dispute by the respondent was not entertainable on the principle of res judicata and also in view of the earlier arbitral award dated 25.10.1999. The cause of action regarding the dispute referred subsequently on date 24.6.2002 was available to the respondent on the date of filing the first reference to adjudicate the dispute in the month of March 1999. If the same was not referred on earlier occasion then after adjudication of the earlier dispute vide dated 25.10.1999, the respondent precluded to refer any dispute relating to the contract of the parties. The same could not be entertained by virtue of provision of Order 2 rule 2 of the CPC. Besides this, on merits he said that the respondent has failed to prove that the alleged gunny bags were purchased by him for the appellant and the same
