IN THE HIGH COURT OF KARNATAKA AT BANGALG§§_EI"'--VVA
DATED THIS THE :6'I'H DAY OF ocroagifi ~
BEFORE
THE HOI\E'BLE MR. JUSTIVC7/IE i?7_;A§§IAN_$A
M.F.A.NO.698 2<j03fi AA
BETWEEN: I I I
1 M/S BALLARPUR1NDUs'r121Es5I:I*D."-I _
A COMPANY INCORPORATE-Dv'U'ND_E'R '
THE COMPANIES AC.'.l'..A_ND HAVING; " '
ITS oFFEcE.A'r..F1Rs'rINa31A.PLA~3§: -
TOWER Ti' hI'T":1EEi?AE¥LIéGURGAQN'ROAD
GURGAQF3, H§é3f%YAI*3A'--3 22 002-
REPRESE}N_'I'ED«.HER BEN BY ms
ASS'i';MANAGE-R--F.DIvi1N'~SMT.R.DHARMAMBAL
» 4- g ...APPELLAN'I'
(By : ms sUreDARAswA_m*~~-- IIMMDAS, ADVOCATE)
» ,V§{§;RAILA'sTATE DETERGENTS
ANVEL-'.._CHEMIi\$ALS mm
'-__A c:0MPA:sIY MCORPORATED
UND.ER---THE COMPANIES ACT
AND HAVING rrs REG OFFICE
AT KUTFIPURAM,
I I MA.u.ARpuRAM DISTRICT
'KERALA S'I'A'I'E'.
I "-- _fREPRESEN'I'ED HEREIN BY ITS
MANAGING DIRECFOR
RESPONDENT
(By M/S.: NARAYANA A/s,ADvo<:A'I'Es)
MFA FILED U / S 39 OF' ARBITRATION ACT AGAINST THE
ORDER ET. 1.7.03 PASSED IN A.C'..NO.9/93 ON THE FILE OF
THE VI ADDL. CITY CIVIL JUDGE, BANGALORE, CCCH N011,
DISNHSSING THE PETITION FILED BY THE APPELLANT HE'i§'E£.N
}I/ S 33 AND 20 OF THE ARBWRATION 85 CONCILIATION-«}§CXI*".-«_V
This appeal, coming on for hearing,
Court, delivered the following: T'
The appellant had eeappncae¢:;%e
Sections 22 and 33 ref Z Aet " for a
declaration that 12.5.1990
entered into I stood
1991 and there is
no existence between the
parties. sought for an alternative
. the eeur.t.Mwe1e to hold that an arbitration
:evx;1gbs_ists between the parfies, then to direct
to be filed and to make a reference
T_to oiie..ef«:_3:eere arbitrators to be appointed by the court
VA mew,
9' H2. The respondent entered appearance and
h ' " .'eentested the application.
A 'F\?' . ., I A 631
claim for damages of Rs. 1.94,40,.OO0/-. This ~ V.
suitably replied by appellant on 3. I 1.
attention of respondent about
contract by mutual agneementonz199 A' by
5. The appellant alse
21.01.1993 from tebtermme
the agreement dated one more ‘
letter was by 29.01.1993
wherein it that respondent
would or the agreement dated
12.4. 1996 to arbitration. Therefore,
_ appeflent filed’ iapgvjrlication before the trial court by
V. idprotdsions of Sections 22 and 33 of Arbitration
of declaration that the ageement
V -V dated a stood discharged on 27 .9. 1991 and
V’ .thereA no arbitration agreement existing between
‘ In the alternative, if the court were to hold that
” erbitration agreement subsists between the parties, for
reference of disputes to one or more arbitrators to be
appointed by the court. a~\-5} _.~_ ,.
7. The respondent flied objections denying____the
averments of the application. The respondent’-.”
specifically contended, in the 4.
12.4.1990 there is no references’ -to 4.’_f{)f
detergents by appellant to USSR.;°.’£t ism
agreement that respondent
raw~materia1s for purpose of aofvdetergents
which are to be exp§r:ea ‘I’herefore,
respondent Ltgat had
taken Zplace the year 1990 have no
relevance teagcenv 12.4.1990 entered into
_ the appellant cannot invoke for, L..«_.(.I’u.
materials supplied to him. The respondent A’ %
that there was meeting held on 27.9.
had ameed to terminate the
has contended that agreeme.r.1_t wds._hotV L.
pleaded by appellant has
contended that in view:– erhitratioh clause
in the agreement, to invoke
arbitration __::–4§V’.’U5:v.’fVi3:<::'é"'V<'$gI'eeII}e11t dated
9. judge on consideration of
averments of the objections and several
‘_ the parties has negatived the
the appellant that ageement dated
‘j_ into between parties stood
I_ter§inaStedVon 27.9.1991. The learned trial judge has
held,–.. if such a contention is available to appellant,
theisame could be raised before the arbitrator.
The trial court dismissed the application.
Therefore, appellant is before this court
J _»;’__’/63/”. S’
10. I have heard
senior counsel for apmllant and ” .. V’
learned senior counsel for fl ‘ ‘ A
11. The learned coun~$ei_
judments of the Siipreme 1962
so 1810, AIR 1985 see 667 has
made foI10WiI1g
(i) The egiieement as also
to arbitrator,
ted the court. The same being
court cannot such
a issue decided by the arbitrator.
(gi, . trial judge has ignored several letters
Le. ‘ which would establish that the
between the parties stood discharged
it ” terminated on 27.9.1991.
The learned trial judge has committed an error in
holding that there exists arbitration ageement
. .1
between the parties. N’ Cg,L,,.g:eue. Cm,
(iv) The learned trial judge committed a
holding tlimt even if such a contention. i
to appellant, the same
arbitrator. The leeraed’ A ‘ it .
rejected the applicatioii to ‘V.
alternate p1aye3;._._”‘:;nacle”‘§V.’ ._ e _ apeellant for
reference of —-
12. appearing for
respondezit ‘submissions:
~_ of appellant that it had
it 2 agreement with respondent
Vforl” of detergents to USSR has no
It is not one of the tenns of the
X dated 12.4.1990.
respondent had agreed to process the
raW~»materials supplied by the appellant
after processing, finished material to
appellant in terms of ageement dated
12.4.1990. There was no implied or
expresse ameement between the parties
3′? , .. 4′ xxx, t”3’V’-‘C’-“[“*?’
that respondent should
material and supply “to: K V’
for being exported
political t:ncc1’tai1*;t§{.V..w1iic:h’ fad in
USSR in the
whatsoever 4…’: _ u an ‘figment dated
12.4.1990.
(iii) of was paid by
____ H towards processing
ms of raw materials which
%* gamed to respondent by
termination of appellant cannot
“iv; arbitration clause stipulated in the
agreement dated 12.4.1990 is
comprehensive agreement to decide the
question as to whether ageement has been
terminated or whether party to agreement
have committed breach of contract and
/’__/£3/’1,..g…fi5£ Wm.
I2
liability of appellant to pay a
claimed by respondent. it ll
In support of these submi§ssions,’_
counsel for respondent has ‘#1
reported in AIR 1935 so 1 X 1 A l
13. Having regargil to; mede by
learned Senior Jfelr contentions
raised by tl1(:§..p:-};t’l::f_irE’,S reiterated
before tlliei ‘f01f11iliz1eteV–:_1’e1Iowing points for
. ‘.
(i) dated 12.4.1990
enteI”‘etVi.l..__.__iI*lt0 between the parties was
in the context of facts stated in
V ‘V ‘V”‘.Vfifi§’%#l’é[::.éfipIiw’m.mI-1?
vthemer the learned trial judge has
committed an error in holding that
ageement dated 12.4.1990 was not
terminated on 27.9.1991?
(iii) Whether the learned trial judge having held
that there exists arbitratioll aareement
M p,.,,e:;?!7(.,t_
I3
between the parties was
dismissing the application __ A’ %
appointing an arbitrator and. i
disputes to arbiti*iivtio:i.4 f}i1i–. _ “I is V?
ageement datedfl-2:4.
of the Arbitration
(iv) To what
14. On careful dated
12.4. 199o,_ I to supply of
raw j processing of raw
materials The ageement does not
stipiiglaie. t11st”‘fiie goods would be exported
to USSR. The ageemem does not contain
that supply of raw materials by
V iv . appeilaiiii respondent would depend upon export of
goods by appellant to USSR. Therefore,
izigipeliant cannot be permitted to plead political turmoil
T as political uncertainty that prevailed in USSR in the
U year 1990 to resoiiid from contract by invoking force
majure clause. N} ‘ .
In my opinion, the learned trial judge having . 2
the agreement between the parties was not
on 27.9.1991 should have ._th_e
arbitrator in terms of clause 22 of. ageeinent
Section 20 of the Arbitration
19. In V’iCW of flies tor the
reasons stated herein No.1 in-
negative and 9
20. The gnome have considered
alterrietg epgiellant and should have
appointed’ in terms of the ameement
. A’VdateLi:. should have called upon the
9* parties terms of reference.
” of the above, I pass the following:
1′ ‘Cf it ‘the appeal is accepted in part. The finding of the
court that agreement dated 32.4.1990 was not
terminated on 27.9.1991 is confirmed. The finding of
the trial court that there exists arbitration clause in the
ameement dated 27.9.1991 is confrmed. The trial
[\?.
C’
L
17
court is directed to restore the file, issue notices to___the
parfies and appoint an arbiuator in terms ..off_=tI1eVV
agreement dated 12.4.1990 and Section _
Arbitration Act after hearing b0th»12h.C K V’
court shail call upon both
of reference.
The obse1’vatio11_s. made. shall; not be
read as expression of oi)i;to,ione.oi’» the case. It is
made (tiear “”” ,” obeeflafions fiiade herein. are restricted
for the
Qffioet mud back the records along
t’~wnh&mmm§ufis¢fiaa
Sdfw
Iudge
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