Civil Revision No.2365 of 2009 [1 ]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Civil Revision No.2365 of 2009
Decided on : April 29, 2009
M/s Brij Lal Mohan Lal
… Petitioner
VERSUS
H.P.Agro Industries Corporation Ltd., and another
… Respondents
CORAM :
HON’BLE MR.JUSTICE A.N.JINDAL
Present: Mr.Gurpreet Singh,
Advocate for the petitioner.
A.N.JINDAL, J.-
M/s Brij Lal Mohan Lal – plaintiff/petitioner (herein
referred as the petitioner) by way of the instant petition has assailed the
order dated 15.4.2009 passed by Civil Judge (Jr.Divn.), Chandigarh
passed under Section 8 of the Arbitration and Conciliation Act, 1996
(herein referred as `the Act’), allowing the application of H.P.Agro
Industries Corporation – defendant/respondent to get the matter
adjudicated from the Arbitrator and also for rejecting the plaint under
Order VII Rule 11 read with Section 151 of the Code of Civil Procedure.
The petitioner firm is dealing in transportation, whereas,
respondent Corporation had invited tenders for carriage of bitumen from
Civil Revision No.2365 of 2009 [2 ]
Refinery at Panipat to various stores of HPPWD, Corporations, Boards,
etc., in the State of Himachal Pradesh. The tenders were opened and
accepted in Himachal Pradesh and agreement dated 12.4.2007
(Annexure P-1) was executed between the petitioner firm and respondent
Corporation at Shimla. Ultimately a dispute arose inter se the parties to
the agreement.
The petitioner firm filed a suit in the Court at Chandigarh
restraining the respondents from encashing the Bank Guarantee.
However, the respondents moved an application under Section 8 of the
Act as well as Order VII Rule 11 read with Section 151 of the Code of
Civil Procedure for rejecting the plaint, on the grounds that the petitioner
has not come to the Court with clean hands as in view of Clauses (31)
and (32) of the agreement (Annexure P-1), the matter was to be
adjudicated by the sole Arbitrator and Civil Court at Chandigarh has no
jurisdiction to entertain and try the suit.
Having heard the learned counsel for the petitioner, it is
essential to quote the aforesaid two clauses of the agreement, which read
as under:-
“31. In case of any dispute or difference arising out of this
contract, the same shall be referred for arbitration of the
Principal Secretary (PW) to the Government of H.P., whose
decision shall be final and binding on both the parties.
32 Notwithstanding anything contained in any other law,
the parties hereby agree that the courts in Shimla, H.P.,
alone shall have jurisdiction in respect of al or anything
Civil Revision No.2365 of 2009 [3 ]
arising under this agreement and any award or awards made
by the sole arbitrator hereunder shall be filed in the Court in
the City of Shimla only.”
As such, in view of the definite stipulation between the
parties, the matter was to be referred to the Arbitrator and the Civil Court
had no jurisdiction to try the suit.
That apart, the transactions between the parties, including
the calling or acceptance of the tenders and the execution of the
agreement took place within the jurisdiction of the State of Himachal
Pradesh. Only the Bank Guarantee was given by the Chandigarh office
of the Bank, which too was furnished with the respondents at Shimla.
The dispute has arisen between the parties out of the
contract and there is no dispute of the petitioner/respondent with the
Bank with regard to revocation of the Bank Guarantee, therefore, mere
achieving the Bank Guarantee from the Bank Office at Chandigarh,
which was furnished in the office of the respondent Corporation at
Shimla, does not give any cause of action to the petitioner to file a suit at
Chandigarh. The dispute has arisen out of the contract and not out of
the Bank Guarantee, as such, the Civil Court at Chandigarh has no
jurisdiction to entertain or try the suit. Thus, no fault with the order of
the Court at Chandigarh, rejecting the plaint could be found.
While taking the case from another angle, since the
impugned order rejecting the plaint has finally decided the matter before
the court below, therefore, only an appeal could be filed against it and
Civil Revision No.2365 of 2009 [4 ]
the revision is barred under Order 43 Rule 1 and 2 CPC. In this
view of the matter, since the alternative remedy is available to the
petitioner, the provisions of Article 227 of the Constitution of India,
could not be invoked by him. At the same time, the impugned order
directing the matter to be adjudicated upon by the Sole Arbitrator in the
terms of the agreement dated 12.4.2007 (Annexure P-1) is also well-
founded.
No grounds to interfere.
Dismissed.
April 29, 2009 ( A.N.JINDAL ) `gian' JUDGE