Simultaneously proceeding at court and as well as arbitrator
Goapl Garg
(Querist) 21 December 2016
This query is : Resolved
I have been a defendant in a title suit wherein there were 14 defendant , all the defendant belong to one family. The agreement on the basis of which the suit was filed by the plaintiff also had an arbitration clause . During the pendency of suit under civil judge , district court the plaintiff and three of the defendants opted and entered into an arbitration proceeding separately for the same cause and matter . I have brought the fact of simultaneously arbitration on the same matter in the notice of the court . The court on the learning of simultaneously arbitration has dismissed the title suit . Now the plaintiff has preferred an appeal against the courts dismissal order at the High Court.
Sir , I wish to know whether the district court was correct in dismissing the title suit in total on the grounds of simultaneously proceeding carried out by the plaintiff and some of the defendant at a different arbitrator issue for the same cause and issue under section 8 of the Arbitration Act.
Thanks in advance
adv.bharat @ PUNE
(Expert) 21 December 2016
Yes court have right to do it since in your affidavit u had given that no case is filed for the same matter in any other court.
Goapl Garg
(Querist) 21 December 2016
Sir,
The Plaintiff filed the suit at Civil Court and during the pendency of the suit, the plaintiff and some of the Defendants started an Arbitration for the same cause. So the there have been a suit pending and at the same time an arbitration also commenced, thus the court dismissed the suit....Please guide taking into consideration this fact...
dr g balakrishnan
(Expert) 22 December 2016
sec 89 of the CPC 1908 as amended allows the court to frame questions fr arbitration of the matter; now that the plaintiff on his own besides some defendants moved for arbitration, may be for not to stick to strict laws but just just arbitration, the hon court is right to dismiss the suit, allow the arbitration, if fails then the matter would again come before the civil court of right jurisdiction; the idea of sec 89 is to allow 'arbitration' first, if failed to move the civil court, after all civil laws are not as strict as criminal laws, but 2005 amendment sec 205 in ct p c surfaced, that is 'plea bargaining' ,it is some kind of 'blood money concept ' of islamic countries criminal courts, but in India,fully sec 205 is under utilized is to be noted.
Appears judiciary under government law making process perhaps wants to allow things to settle themselves between plaintiffs or complainants and respondents and defendants.
so state wants to slowly get out of disputes;
see, income tax laws make AOs to use sec 143 r/w 141 or sec 147 wrk on AO's satisfaction by Notices to ask tax payers comply so that some how revenue is collected; only in cases of gross errors of bad law situations , the revenue loses coses in tribunals or under HC benches...
so here the civil court rightly dismissed sir, tks
dr g balakrishnan
(Expert) 22 December 2016
May be the HC might dismiss without merit clause.so that arbitration continues; if fails you have every right to move the civil court.
Rajendra K Goyal
(Expert) 22 December 2016
Court is right till High court reverse the decision in appeal.
H.M.Patnaik
(Expert) 22 December 2016
Nothing more to add.
P. Venu
(Expert) 23 December 2016
In my considered opinion, arbitration is nor permissible in a dispute involving 'rights in rem'; any title suit involves 'rights in rem'. Arbitration is limited to deciding 'rights in personna'
Dr J C Vashista
(Expert) 30 December 2016
If the defendant(s) have filed their written statement before moving to Arbitration (as per clause in agreement)they have missed the bus and foregone their right/opportunity of arbitration, i.e., cannot proceed in Arbitrational Tribunal in terms of Arbitration and Conciliation Act, 1996.
City civil court decision is required to be referred by a senior lawyer, which I do not subscribe and accept, (a)the court cannot dismiss on the plea of moving to arbitrational tribunal (but it has to be moved by both parties and all defendants/plaintiffs); (b) First Appeal assailing city civil court lies with District Judge and not High Court, if the Court is presided by Civil Judge or Civil Judge (Junior Division).
