JUDGMENT
Manju Goel, J.
1. This application captioned as under Section 5 of Arbitration and Conciliation Act, 1996 read with Order VII Rule 11 CPC seeks dismissal of the suit with exemplary costs. The prayer is made on the following premises: There is no privity of contract between the plaintiff P.K. Bajaj and the defendant. In fact there was some transaction between the defendant and one Aman Bajaj as proprietor of Bajaj Studios and Apsons. As per the agreement with Aman Bajaj the jurisdiction would lie in Mumbai. Further there is an arbitration clause in the agreements between the defendant and Aman Bajaj, Section 5 of the Arbitration and Conciliation Act bars the jurisdiction of this Court in intervening in any matter in dispute and, therefore, the suit is not maintainable and the plaint is liable to be rejected under Order VII Rule 11 CPC. The application is opposed on the ground that the plaintiff is the proprietor of Bajaj Studios and Apsons and that any agreement between the defendant and Mr. Aman Bajaj has no application to the facts of the suit.
2. From the narration of facts given above it is clear that there is no agreement of arbitration between the plaintiff and the defendant. Nor is there any agreement between the plaintiff and the defendant which bars the jurisdiction of courts in Delhi. The application of the defendant for rejection or for dismissal of the suit either under Order VII Rule 11 CPC or under Section 5 of the Arbitration and Conciliation Act is entirely misconceived. Secondly, Section 5 of the Arbitration and Conciliation Act does not provide that if there is any arbitration agreement no suit whatsoever will lie. All that the section says is that for any proceedings under Part I of the Arbitration and Conciliation Act no judicial authority would intervene except as provided in Part I. This section is reproduced below for ready reference:
5. Extent of judicial intervention.- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.
3. The section does not say that a suit will not lie in case there is an arbitration agreement in respect of the dispute between the parties. All that it says is that in case there is any matter governed by this part of the Act, the judicial intervention would be only as provided in this Act. In other words, if there is any arbitration in progress there will be no interference by the court except as provided in this Act. This suit cannot be taken as an interference either with an arbitration agreement or an arbitration proceeding.
4. Learned counsel for the defendant has referred to four judgments, namely, Sarkar Enterprise v. Garden Reach Shipbuilders and Engineers Ltd. ), Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums , CDC Financial Services (Mauritius) Ltd. v. BPL Communications Ltd. and Ors. (2003) 12 SCC 140 and Rite Approach Group Ltd. v. Rosoboron Export 2005 (9) SCALE 361. Unfortunately for the defendant, none of these citations goes even close to what the defendant’s counsel has attempted to propound. All these citations deal with Sections 8, 9 and 11 of Arbitration and Conciliation Act. The defendant has not made any prayer for appointment of an Arbitrator. Nor does he says that any arbitration is in progress.
5. The application under consideration is accordingly dismissed with costs of Rs. 3,000/-
