* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN

+ CIVIL MISCELLANEOUS APPEAL NO: 481/2024

%Dated:25.04.2025

# M/s.Ivax Paper Chemicals Private Limited …… Appellant

and

$ M/s.Savani Carrying Private Limited ….. Respondent

! Counsel for the appellant : Sri Nidhi Epur, representing

Sri Kailashnath P.S.S.

^ Counsel for the respondent : Sri Gundapu Rajesh Kumar

< GIST :

> HEAD NOTE :

? Cases referred :

(1) ((2023 7 SCC Page 1)

(2) (2024) 6 SCC 1

(3) (2006) 7 SCC 275 (4) (2011) 5 SCC 532

(5) (2021) 2 SCC 1

(6) (2005) 8 SCC 618

(7) (2024) 4 Supreme Court Cases 255

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI AND THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CIVIL MISCELLANEOUS APPEAL NO: 481/2024 Dated: 25.04.2025 M/s.Ivax Paper Chemicals Private Limited …… Appellant and M/s.Savani Carrying Private Limited ….. Respondent DATE OF ORDER PRONOUNCED: 25.04.2025.

(per Hon‟ble Sri Justice Ravi Nath Tilhari)

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No Marked to Law Reporters/Journals.

3. Whether Their Lordship wishes Yes/No to see the fair copy of the Judgment?

____________________ RAVI NATH TILHARI, J ______________________ CHALLA GUNARANJAN, J THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN C.M.A.NO: 481/2024 JUDGMENT: (per Hon‟ble Sri Justice Ravi Nath Tilhari)

Heard Sri Nidhi Epur, learned counsel representing Sri Kailashnath P.S.S, learned counsel for the appellant, through virtual mode and Sri Gundapu Rajesh Kumar, learned counsel for the respondent.

2. This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (in short „the Act, 1996‟), has been filed by the defendant, in O.S.No.368 of 2022 pending in the Court of learned II Additional Senior Civil Judge, Visakhapatnam(in short „the Trial Court‟), challenging the order dated 19.09.2023 passed in I.A.No.209 of 2023 in the said suit.

I. Facts:

3. The plaintiff is the respondent. He filed O.S.No.368 of 2022 against the appellant for recovery of amount and other reliefs inter alia on the allegations that the appellant had to pay bills raised by the respondent pertaining to the delivery of consignment goods.

The consignments were bound by the terms and conditions specifically mentioned on the consignment notes.

4. In the suit, the appellant filed I.A.No.209 of 2023 under Section 8 of Act, 1996, to refer the parties to the arbitration as per clause (8) of the consignment notes.

5. The respondent/plaintiff filed objection/counter. It was submitted that the appellant had filed a suit in S.No.1777/2022 against the respondent before the City Civil Court, Mumbai, which was being contested by filing written statement and was pending. The appellant had waived the right to invoke arbitration clause in approaching the City Civil Court and in not invoking the arbitration clause. If the appellant was interested in arbitration proceedings, he ought not to have filed S.No.1777/2022 in the City Civil Court. Objection was also raised that the consignment notes which contained the arbitration clause were not duly stamped and hence, unenforceable and it could not be said that there existed an arbitration agreement. It was requested to reject I.A.No.209 of

2023.

II. Order of the Trial Court:

6. The learned Trial Court framed the following point for determination:

“Whether the petitioner is entitled for the relief to refer the matter to arbitration as per clause (8) of the consignment notes issued by the plaintiff, as prayed for?”

7. The learned Trial Court took a view that the appellant, filed S.No.1777 of 2022 before City Civil Court, Mumbai, basing on the same consignment notes and so he had waived the arbitration clause. It was further observed that the appellant did not disclose in his written statement about the S.No.1777 of 2022, which was considered as the first statement of the substance on the dispute under Section 8 of the Act, 1996 and so,