Urgent- Application Under Arbitration Act
Rekha.....
(Querist) 17 August 2009
This query is : Resolved
Dear Sir/ Ma’am
We hv one query about civil matter
We r Defendants (Finance Company ). The plaintiff has filed the suit for Injunction order. The plaintiff prays from the Hon’ble court that the defendants should prevent from snatching the Vehicle financed by them.( defendants)
Now V hv filed the application that this matter should refer under the Arbitration Act or clause according to the agreement signed by the Plaintiff. V hv not filled any say or WS n against this suit n 90days hv already passed. The hon’ble Judge is pressurizing us to file our WS or say w.r.t to Exhibit 5. We want that our application should be heard first. As far as V know that if V file WS or say against the said suit the Civil proceeding will start.
Would please suggest us what V should do in this matter
R.R. KRISHNAA
(Expert) 17 August 2009
As per section 8 you have to file a application for reference of dispute to arbitration. You can request the court to take up the said application first and decide it. After which you may file the written statement.
(....The facts disclosed by you reveals that it is a matter pertaining to hire purchase agreement. In such matters (hire purchase agreements) the parties can contest the matter before the court itself and need not be referred to arbitration(a judgment delivered by calcutta high court holds this view)
AIR 1998 Calcutta 94.....
Hence please be cautious during the course of arguments as the plaintiff may make use of the above judgment.
vinjamuri ranga babu
(Expert) 17 August 2009
hi,
in which court injuntion is filed. if it is filed in othrthan district court your applciation for reference is not maintainable under law. you have to move an application to the district court for reference. as per your agreement if it is mandatory, your company can directly approach an arbitration by issuing notice notice to the plaintiffs. here wt you have to do is make an application seeking permission from the court to recover the vehicle, whenever defaults in the interest of your company. som kindly go through the issue carefully. you have to file WS denying all the allegations, otherwise you will be to great loss if any adverse order is passed. so, file your WS as early as possible.
vr
Kamal Grover
(Expert) 17 August 2009
File an application and ask the judge to decide the application on merit. else file W.S and take prelemanry objection that suit is not maintenable due to arbitration clause.
Your further clarification is welcome at nominal fee at;
adv.kamal.grover@gmail.com
Advocate
M:09814110005
PB. & HRY. HIGH COURT CHANDIGARH (INDIA)
With Regards
KamalNayanSaxena
(Expert) 18 August 2009
Rekha,
Taking all above facts into consideration it may be safely concluded that injunction suit is not barred in this case. Nevertheless the existance of arbitration clause in the contract between the borrower & your company, you can't snatch the vehicle.
You may be advised to contest the case on merits by filing ws without delay.
regards
Kamal
KANDE VENKATESH GUPTA
(Expert) 18 August 2009
Dear Rekha,
The arbitration clause in the agreement will not oust the jurisdiction of the civil court. Sec.8 of the Arbitration & Conciliation Act stipulates that, in the event, any party to the arbirtration agreement files a suit ignoring the arbitration clause, the other party has two options viz., (i) to contest the suit by filing written statement, or (ii) before putting forth your defence i.e., denying or admitting the contents of the plaint by filing w.s. in the main suit or counter in the interlocutary applications, to file an application u/s 8 of the A & C Act, 1996, and ask the court to refer the parties to the arbitration. As you said, you have already filed an application in the court u/s 8 of the Act seeking to refer the parties to the arbitration. That being the case, the court cannot insist you to file your written statement. If the court insist you to file written statement by way of an order on the docket sheet, you have to file revision before the High Court challenging insistence by the court to file written statement and seeking directions to dispose of petition u/s 8 of the Act. The moment you you file your written statement, you will loose your right u/s 8 of the A & C Act ask the refer the parties to arbitration.
What do you want exactly? Do you want to contest the suit on merits? or to get the dispute resolved through the medium of arbitration? Even if you want to resolve the dipsute through the medium of arbitration, you cannot snatch the vehicle from the plaintiff(borrower) without due process of law. First you decide which course of action is beneficial to you? If there is any clause in the agreement between you and the borrower entitling you to seize the vehicle, you can show the same before the court and get the suit dismissed.
