IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 256 of 2008()
1. DR.P.V.SURESH, S/O VASUDEVEN,
... Petitioner
Vs
1. CLASSIC FINANCE & KURIES {P] LTD.,
... Respondent
For Petitioner :SRI.N.K.SUBRAMANIAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/03/2008
O R D E R
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+CRP.No. 356 of 2008()
#1. P.N. RAVINDRANATH, AGED 58 YEARS,
... Petitioner
Vs
$1. THE KERALA STATE HOUSING BOARD
... Respondent
2. THE EXECUTIVE ENGINEER,
! For Petitioner :SRI.K.L.VARGHESE
^ For Respondent :SRI.A.JAYASANKAR, SC KSHB, TVM
*Coram
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
% Dated :25/09/2009
: O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.NO.356 OF 2008 ()
———————————–
Dated this the 25th day of September, 2009
O R D E R
The revision is directed against the order dated
12.3.2008 in I.A.No.39992 of 2006 in O.S.No.333 of 2005
passed by the learned Sub Judge, Palakkad. Petitioner is the
plaintiff in the above suit, which was one for recovery of
money for the work done on the basis of an agreement with
the respondents/defendants. In the suit, petitioner/plaintiff
moved an application for reference to arbitration the disputes
involved suggesting the issues emanating for settlement. The
respondents/defendants, who have already filed a written
statement disputing the entertainability of the suit claim
resisted the application filing written objections. The learned
Sub Judge, after hearing both sides, passed the impugned
order holding that since there is no consensus between the
parties for reference to arbitration, the request of the
CRP.356/08 2
petitioner/plaintiff cannot be entertained, with the result, the
application moved seeking that relief was dismissed.
Propriety and correctness of that order is challenged in the
revision invoking the supervisory jurisdiction vested with this
Court under Section 115 of the Code of Civil Procedure.
2. I heard the learned counsel on both sides. The
learned counsel for the petitioner, invited my attention to the
rules framed by the High Court under Section 122 of the CPC
with reference to Section 89 of the CPC. The above rules are
called the Civil Procedure (Alternative Dispute Resolution)
Rules, 2008, which have been published in the Gazette on
7.3.2008. Inviting my attention to Rule 5 (f) and (g), the
learned counsel for the petitioner submitted that the view
taken by the court below that a reference can be made when
one of the parties seek for resolution of the disputes by way of
any of the methods covered by Section 89 of the CPC only on
consensus or agreement by the opposite party, is not correct
and the court was expected to examine whether there are
chances of settlement by reference, as desired for. So much
CRP.356/08 3
so, according to the learned counsel, the impugned order
suffers from not only error of law, but, jurisdictional infirmity
warranting interference by this Court. On the other hand, the
learned counsel for the respondents/defendants, inviting my
attention to Southern Structurals Ltd. v. K.S.E.Board
(2008 (1) KLT 105 (F.B.)), contended that this Court has
held in unequivocal terms that in the absence of consensus by
the parties, a reference under Section 89 of the CPC is not
permissible as it is violative of the provisions covered by the
Arbitration and Conciliation Act, 1996. So much so, according
to the learned counsel, no interference with the order passed
by the learned Sub Judge is called for. The learned counsel
for the petitioner, in all fairness, submitted over the question
whether a compulsory reference can be made by the civil
court under Section 89 of the CPC, divergent and conflicting
views have been expressed by the apex court and till a
decision is rendered by a larger bench, this Court and also the
subordinate courts have to follow the law laid down by the
Full Bench in the above reported decision. In the light of the
decision rendered by this Court, in Southern Structurals
CRP.356/08 4
Ltd. v. K.S.E.Board (2008 (1) KLT 105 (F.B.)), I find no
challenge can be raised against the order passed by the curt
below declining the reference to the arbitration, as desired by
the petitioner/plaintiff in the suit. The revision is therefore
dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp