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TMI Blog2004 (3) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... er, and respondent No. 2 from in any manner commencing and/or in proceeding with and/or participating in any proceeding in a Court of law and/or any arbitration under the agreements dated 9th November, 2000 and 18th January, 2001 and also restraining them from acting upon or in furtherance of the above mentioned agreements. The application for injunction was rejected by the trial Court by its order dated 13th August, 2002. Against that an Appeal came to be filed being Appeal from Order No. 799 of 2002. That Appeal came to be dismissed by order dated 30th November, 2002. At the time of hearing of the Appeal the position was that Arbitral proceedings between the petitioner and respondent No. 1 had commenced and an Arbitrator had been appointed and in between respondent No. 1 and Respondent No. 2 arbitral clause had been invoked. In the present matter we really are not concerned with the arbitral process between the respondent No. 1 and respondent No. 2. The Appeal preferred came to be dismissed by order dated 30th November, 2002. This Court held that as the arbitral process had commenced, it will not be appropriate to stay the arbitral proceedings but allow the parties to agitate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner and respondent No. 2 had not moved by an application under section 45 for referring the dispute to arbitration and unless request is made by either of the parties, the parties could not be referred to arbitration and as such it would be difficult to hold that the jurisdiction of the Civil Court is ousted and in that light of the matter dismissed the application while clarifying that the petitioner and respondent No. 2 are at liberty to invoke the provisions of section 45 of the Arbitration Conciliation Act, 1996. It is this order which is the subject-matter of the present Revision Application. 3. At the time of hearing of this petition on behalf of the petitioner their learned Counsel drew my attention to the judgment of this Court in GTC Ltd. v. Royal Consulting RV 2003 (2) All MR 608. It is contended by the learned Counsel for the petitioner, after referring to various paragraphs in the judgment, that there is nothing further left in the suit and consequently the trial Court ought to have allowed the application and consequently the order will have to be set aside and the suit dismissed. It was also pointed out by the learned Counsel for the petitioner that in fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousted even if there be an arbitral award in the arbitral proceeding between the petitioner and the respondent No. 1. At any rate it is contended that considering sections 44 and 45, the Court will continue to have jurisdiction. 5. With the above we may now proceed to dispose of the issues that arise in the present proceedings. In so far as the issue of jurisdiction is concerned, the petitioner would have to show on the facts of the case that on account of subsequent acts namely passing of the award the Civil Court would cease to have jurisdiction in respect of the subject-matter in the pending suit, though initially it had jurisdiction. The Civil Procedure Code has been amended in the State of Maharashtra by introduction of section 9A to the Code of Civil Procedure. By virtue of this amendment it is open to a defendant to raise a plea of want of jurisdiction even at the stage of interim relief and if is so raised the Civil Court is bound to frame the issue of jurisdiction at a preliminary stage and dispose of the same. As noted earlier the application moved by the petitioner is on the basis that the award has been passed on 1st April, 2003 and the remedy if and at all of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the subject-matter of an arbitration shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. As observed by the Apex Court in P. Anand Gajapathi Raju ( supra ) and as further observed in Sukanya Holdings (P.) Ltd. ( supra ), if the subject-matter of the dispute is subject-matter of arbitration and all parties to the suit are parties to the arbitration agreement and the defendant has complied with other requirements of section 8 including invoking the provisions before filing the first statement of defence, there is nothing left for the Court but to direct the parties to arbitration and all issues then will have to be decided by the learned Arbitrator, including the issue as to the validity of the arbitration agreement itself. We are, however, not concerned in the instant case with an application under section 8. We are concerned with the provisions of section 45 of the Act of 1996. It may also be noted that the application before the trial Court not to proceed with the suit was taken by both the petitioner, and respondent No. 2. However, only the petitioner the original defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing of the Appeal From Order had noted that the petitioner and respondent No. 2 for reasons which they are so advised had not applied under section 45 of the Act of 1996. At any rate, the suit itself seeks relief that the agreements including the arbitration agreement is null and void. In these circumstances even if the reply to the application for temporary injunction is considered to be an application to the Court under section 45, yet the issue would have to be decided, whether the parties could have been directed to arbitration without the Court first considering that the agreement is null and/or inoperative or incapable of being performed. Even otherwise considering the language of section 45 which uses the expression at the request of one of the parties, would mean that the attention of the Court is invited to the arbitral clause with a request to direct the parties to arbitration. This would mean that a formal application is made to the Court so that the other side and the Court knows why the request under section 45 is made. The real crux of the matter however, is that an Award has been passed. Is it open to this Court at this stage to dismiss the suit or not to proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue. What this Court was considering in the Appeal From Order was an application for interim relief to restrain the petitioner and respondent No. 2 from proceeding with the arbitral proceedings. This Court after considering the matter held that on the facts and in view of invocation of the arbitral clause, it would not be a fit case to grant injunction and the parties should be left to proceed before the forum that they have chosen. This Court in that matter also examined the power under sections 8 and 16, the doctrine of severability of the arbitration clause as also the power under sections 45 and 54. It is not possible, therefore, to accept the contention raised on behalf of the petitioner that this Court insofar as the subject-matter of the present suit is concerned, has taken a view that the Civil Court would have no jurisdiction or that the suit cannot be proceeded with. It will be open to the petitioner, if so advised, to take out appropriate proceedings in respect of the subject-matter between itself and respondent No. 1, and then to get an appropriate finding and/or order from the Court. In the present Revision Application the scope is limited to the points urged befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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