Sri Rajesh Kumar Moda @ Rajesh Moda v. Sri V. Raj Kumar Raju & Anr.

Sri Rajesh Kumar Moda, the petitioner herein, filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (for short, “the A & C Act, 1996”) for referring the parties for arbitration in view of covenant contained in the agreement dated

31.08.2002 entered into between Sri Asit Kumar Samantaray-opposite party no.1 and M/s. Jagadamba Realcon Private Limited represented through its Managing Director-Sri V. Raj Kumar Raju.

3.2. The said application has come to be rejected vide order dated

22.05.2008 by learned Civil Judge, (Senior Division), Bhubaneswar with the following observation: “***5. Firstly, on a careful examination of the case record, pleadings and the documents filed therewith, the Court does not find any filing of original Arbitration Agreement or a duly certified copy thereof, in order to enable to the Court to refer the matter to arbitration. As its appears from sec.8(2) of the Arbitration and Conciliation Act, 1996 application is not entertainable unless accompanied by the original agreement or duly certified copy thereof. So this Court is constrained by law to hold that the application for referring the matter to arbitration is not maintainable. This view of the Court is also fortified by the recent decision of the Hon‟ble Supreme Court reported in A.I.R. 2008 (S.C.) page.1016 (Atul Kumar Singh-Vrs-Sunil Kumar Singh), wherein it has been held that failure to produce the original or certified copy of the Arbitration Agreement amounts to non-compliance of contained in sec.8(2) of the Act. The dispute could not be the mandatory provisions of refered to Arbitration. Hence the application for referring the matter to arbitration is not maintainable for non- compliance of the mandatory provisions of law contained in Sec.8(2) of the Arbitration and Conciliation Act, 1996. Hence the prayer for referring the matter of Arbitration is hereby rejected.”

3.3. Questioning the propriety and legality of said rejection order, the petitioner approached this Court by way of the present civil revision petition invoking under Section 115 of the Code of Civil Procedure, 1908.

#4. On perusal of record, this Court vide order dated 10.12.2008 granted stay of further proceeding in C.S. No.535 of 2007 pending before the Court of learned Civil Judge, (Senior Division), Bhubaneswar.

4.1. On 07.12.2024 at the time of hearing, Mr. Banshidhar Baug, learned counsel appearing for the petitioner stated that the suit is still pending before the aforesaid learned Court. On the said date of hearing, none appeared for the opposite parties and the matter proceeded with the submissions of the learned counsel for the petitioner that the rejection of an application under Section 8 of the A & C Act, 1996 is mere technical, inasmuch as the original/certified copy of the agreement dated 31.08.2002 (Annexure-1) was before the Court being enclosed to the plaint. He further submitted that insisting for original/certified copy of said document is unwarranted stemming on the provision contained in Section 8(2) of the A & C Act, 1996.

#5. Though hearing was concluded on 07.12.2024, the matter was kept for passing orders after the Court hours. Later while dictating the order, on perusal of the record, it could come to fore that the valuation of the suit property is at Rs.10,200/-. Therefore, the matter was again directed to be taken on board under the heading “to be mentioned” today (11.12.2024).

#6. Mr. Banshidhar Baug, learned counsel appearing for the petitioner submitted that in view of the provision under Article 254 of the Constitution of India, any provision of the State law if found to be repugnant to any provision of law made by the Parliament then to the extent of inconsistency or repugnancy, the law made by the Parliament shall supersede and prevail, and to that extent the law made by the State Legislature shall not be enforceable. Therefore, essentially, he submitted that on a comparison of Section 115 of the Code of Civil Procedure after its amendment in the year 1999 and the Odisha Amendment Act which was made in the year 1991, the Odisha Amendment is enforceable but only to the extent it is consistent with the law made by the Parliament.

6.1. He, taking queue from the judgment rendered by this Court in the case of M/s. Simplex Engineering and Foundry Works Ltd and others Vs. Bhubaneswar Pattanaik, 2003 (1) OLR 508, submitted that clause (ii) to the second proviso below clause (c) of Section 115 of the Odisha Amendment, i.e., “the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made” is no more enforceable being repugnant to Section 115. Needless to say that the remaining part of Section 115 of the Orissa Amendment shall be operative being not repugnant to the existing provision of Section 115 of the Code of Civil Procedure.

6.2. He, therefore, vehemently urged that this Court has the jurisdiction to entertain the civil revision petition even though further amendments have taken place by virtue of the Code of Civil Procedure (Odisha Amendment) Act, 2010, which has come into force with effect from 11.11.2010.

6.3. Valiant attempt has been made to persuade this Court that inasmuch as the said Code of Civil Procedure (Odisha Amendment) Act, 2010 has come into force with effect from 11.11.2010 and the present civil revision petition emanating from order dated 22.05.2008 was filed in the year 2008, which is prior to the said amendment. Therefore, the civil revision petition is competent.

#7. This Court has diligently considered the aforesaid submission and on perusal of record, it is noticed that undisputedly the valuation of suit in the plaint has been depicted at Rs.10,200/-. The judgment relied in M/s. Simplex Engineering and Foundry Works Ltd (supra) by the learned counsel appearing for the petitioner reflects the position qua the amendment of the Code of Civil Procedure in the year 1999. In the said case it has been held as follows: “***10. To understand, reasonably and comprehensively, meaning of the term „proceeding‟ with reference to Section 115 of the Code, and intention of the Legislators in that respect, useful reference is made to Sections 24 and 141 C.P.C. Section 24 provides general power of transfer and withdrawal of suit, appeal or other proceeding and Section 141 provides the procedure to be followed in all proceedings, i.e., proceedings which are other than suit or appeal. Rule 431 in the General Rules and Circular Orders of the High Court of Judicature, Orissa, (Civil) (in short, „G.R. and C.O.‟) provides the list of applications under certain provisions in the C.P.C. and provisions in other statute cognizable by Civil Court with the prescription to register them as Miscellaneous Judicial Cases. In short, such proceedings are mentioned as M.J.C. or Misc. case. Section 24, C.P.C. provides for transfer of a proceeding. Similarly, Section 141, C.P.C. provides for the procedure regarding the suit to be followed, as far as it can be made applicable, in all proceedings. Procedurally and also traditionally the aforesaid procedures are followed with respect to Misc. Cases or M.J.Cs. and such cases only qualify to the term „other proceeding‟ mentioned in Section 115 of the Code. On the other hand, if wider meaning shall be given to that term by treating any and every interlocutory matter arising and decided/disposed of in a suit, then that does not fit into the provision of law in Section 24 or 141 of the Code. Even Section 146, C.P.C. which speaks of proceedings by or against representatives does not mandate that any interlocutory application should be regarded as a proceeding within the above defined meaning of the term „proceeding‟. Therefore, unless application is registered as a Misc. Case in accordance with the provision of the C.P.C. read with the G.R. and C.O., that cannot be termed and determined as a proceeding for the purpose of Section 115, C.P.C. That is so in view of the language in Section 115 that except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.”

#8. It could be ascertained from the copy of impugned order dated

22.05.2008 that the application under Section 8 of the A & C Act for referring the matter for arbitration has not been assigned with any Misc. Case (Interlocutory Application). Therefore, in view of the aforesaid interpretation by this Court, the argument of learned counsel for the petitioner with regard to maintainability of civil revision under Section 115 of the Code of Civil Procedure is fallacious. It may be worthwhile to refer to the judgment of this Court in the case of Bijaya Kumar Sahu vs. Smt. Namita Parida and another, 2008 (II) CLR 359, wherein the following question for consideration arose:- “11. On a consideration of the rival contentions advanced in course of argument and in the facts of the present case as well as various case laws relied upon by the learned counsel for both the parties and referred hereinabove, the main question that arises for consideration is, whether the order dated 27.11.2004 passed by the Ad hoc Addl. Dist. Judge, Bhubaneswar under Annexure-2 holding that the District Judge had no jurisdiction to entertain a revision under Section 115 of the C.P.C. is correct or not?

#12. In this respect, this question has already been determined by the High Court in the case of M/s. Simplex Engineering (supra) and is no longer res integra. In this judgment, the following dicta has been laid down: “In view of the provision in Article 254 of the Constitution of India, any provision of the State Law if repugnant to any provision of law made by the Parliament than to the extent of inconsistency or repugnancy, the law made by the Parliament shall supersede and prevail and to that extent that law made by the State Legislature shall not be enforceable. Therefore, on a comparison of Section 115 C.P.C. after the aforesaid amendment in the year 1999 and the Orissa Amendment Act of Section 115 which has been made in the year 1991, this Court finds that though the Orissa Amendment is enforceable but only to the extent it is consistent with the law made by the Parliament. Therefore, Clause-(ii) to the second proviso below Clause (c) of Section 115 of the Orissa Amendment, i.e., “the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made” is no more enforceable being repugnant to Section 115 as it stands now. It is needless to say that the remaining part of Section 115 of the Orissa amendment shall still be operative being not repugnant to the existing provision of Section 115, C.P.C.”

#13. In view of the aforesaid conclusion of this Hon‟ble Court, it is now well settled that Orissa Amendment of 1991 to Section 115, C.P.C. continues to remain operative, except to the extent of the proviso thereto1. Learned District Judges remain vested with jurisdiction to entertain the revisions in terms of Orissa Amendment Section 115, C.P.C. subject to applying the proviso to Section 115 as introduced by Central Amendment Act of 1999 while exercising such jurisdiction. Therefore, Annexure-2 is quashed and directions are issued to the learned Ad hoc Additional District Judge, Bhubaneswar to admit the revision and decide the revision on merits. It is further made clear that nothing stated in this order shall be deemed to be an expression of any opinion on the merits of the case or on the rival contention of the parties, including the question as to whether a revision petition against an order under Section 24 of the Hindu Marriage Act is maintainable or not. By this order, it is clarified the finding of the learned District Judge that it no longer possesses jurisdiction to entertain a revision petition is, therefore, quashed.”

8.1. In the case of M/s. Citi Financials Consumer Finance India Ltd., Cuttack Branch vs. Rabindra Nayak, 109 (2010) CLT 183 this Court was considering civil revision petition with valuation of suit at Rs.500/- for declaration and Rs.100/- for injunction. Referring to Shiv Shakti Co-operative Housing Society vs. Swaraj Developers & others, AIR 2003 SC 2434, this Court observed as follows: “4. Learned Counsel for the Opposite Party submitted that the civil revision which arises out of an interlocutory order, is not

#1. Clause (ii) to the second proviso below clause (c) of Section 115 of the Odisha Amendment, i.e., “the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made” is no more enforceable. maintainable in view of the ratio in Shiv Shakti Co-operative Housing Society vs. Swaraj Developers & others, AIR 2003 SC 2434. Moreover, the suit filed by the Opposite Party in the Court of Civil Judge (Junior Division) is valued at Rs.500 for declaration & Rs.100 for injunction. Therefore, the civil revision should have been filed before the Learned District Judge, Cuttack. He submitted that there is no illegality committed by the Court below in rejecting the petition under Section 8 of the Arbitration & Conciliation Act. Section 8 of Arbitration & Conciliation Act is very clear that a judicial authority shall entertain such an application after compliance of provisions of Section 8(2) of the Arbitration & Conciliation Act. In Clause 30 of the arbitration agreement, no specific Court or authority has been mentioned before whom the parties to the agreement should approach in case any dispute arises between them. Therefore, the learned Civil Judge (Junior Division) has rightly rejected the application. 5. Perused the record. Considered that submissions made by the parties. There is no dispute that the suit is valued at Rs.500 & is pending before the Civil Judge, (Junior Division), 1st Court, Cuttack. The suit is for declaration. Therefore, the Civil Revision Petition is not maintainable before this Court. It ought to have been filed before the District Judge but not before this Court. The Civil Revision is accordingly dismissed.”

8.2. In the case of R. Rama Rao vs. R. Appala Swamy, 2010 (II) CLR 822, this Court passed the following order:- “So far as maintainability of the revision is concerned, this Court in a decision reported in 2008 (II) CLR 359 = 2008(II) OLR 415 held that the learned District Judge has jurisdiction to entertain the revision. In the decision reported in 2008 (II) CLR 359 = 2008(II) OLR 415: Bijay Kumar Sahu v. Smt. Namita Parida & Anr. where this Court taking note of the decision reported in 2003 CLR 286 = 2003 (I) OLR 508: M/s. Simplex Engineering and Foundary Works Ltd and Ors. v. Bhubaneswar Pattnaik has held that the Orissa Amendment of 1991 to Section 115 CPC continues to remain operative except to the extent of the proviso thereto. Learned District Judges remain vested with jurisdiction to entertain the revisions in terms of Orissa Amendment Section 115 CPC subject to applying the proviso to Section 115 as introduced by the Central Amendment Act of 1999 while exercising such jurisdiction. In view of the said pronouncement of this Court in 2008 (II) OLR 415 (supra), the revision before the District Judge maintainable. In (1995) 4 SCC 718 (Pt. Rishikesh & Anr. v. Salma Begum (Smt.), the Apex Court held that if the Central Act was made earlier than the State Act, the proviso to Article 254(2) of the Constitution of India is not attracted and the State Act would prevail notwithstanding any inconsistency with the Central Act. In the present case, the State Amendment was earlier than the Central Amendment, the said decision is not applicable. The Apex Court in the decision reported in (2003) 1 SCC 228 has held that Article 254(1) of the Constitution of India gives supremacy to the law made by Parliament, which Parliament is competent to enact. But, for application of this article, firstly, there must be repugnancy between the State law and the law made by Parliament. Secondly, if there is repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail. This decision is also not applicable to the present case. The decisions cited above by the learned counsel for the petitioner reveal that the 2001 amendment was inconsistent with the Central Amendment to the Civil Procedure (Amendment) Act, 1976. So far as the Orissa Amendment of the year, 1991 is concerned, it has conferred a power on the District Judge to entertain civil-revision against the order passed by the Trial Court in a Suit where the valuation of the suit is upto Rs.1 lakh. Since the jurisdiction of the District Judge is concurrent jurisdiction, this is not inconsistent with the Central Amendment to the CPC in 2002 & hence the District Judge has the jurisdiction to entertain the revision. This view is also fortified by the decision of this Court reported in 2008 (II) OLR 415 (supra). Therefore, there is no illegality in the order passed by the Revisional Court. The writ petition is accordingly dismissed. No costs.”

#9. In view of the aforesaid discussions and citations, there is no ambiguity remains to be adjudicated with respect to jurisdiction of learned District Judge for entertaining revision petition in terms of the Odisha Amendment of Section 115, Code of Civil Procedure in the year 1999.

#10. Mr. Banshidhar Baug, learned counsel appearing for the petitioner submitted that the Code of Civil Procedure (Odisha Amendment) Act, 2010 (Odisha Act 14 of 2010) has come into force with effect from 11.11.2010 by Law Department Notification No.11825-I. Legis.4/10/L. (S.R.O. No.467/2010) dated 03.11.2010.

10.1. Since the said Act came into force with effect from

11.11.2010, the CRP being filed the year 2008 challenging the order

22.05.2008, this CRP is entertainable by this Court irrespective of pecuniary limit specified in the said Act.

#11. For benefit of understanding, the substituted Section 115 as amended by virtue of the Code of Civil Procedure (Odisha Amendment) Act, 2010 has been reproduced hereunder: “115.Revision.— (1) The High Court, in cases arising out of original suits or other proceedings of the value exceeding five lakhs rupees and the District Court, in any other cases, including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure (Odisha Amendment) Act, 2010, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears— to have exercised a jurisdiction not vested in it by (a) law; or (b) (c) illegally or with material irregularity, to have failed to exercise a jurisdiction so vested; to have acted in the exercise of its jurisdiction the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit: Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section: (2) The High Court or the District Court, as the case may be, shall not under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by High Court or District Court, as the case may be. Explanation.— In this section, the expression „any case which has been decided‟ includes any order deciding an issue in the course of a suit or other proceeding.” Since the valuation of suit is disclosed at Rs.10,200/-, in view

#12. of the aforesaid provision as amendment in the year 2010, this Court is of the considered opinion that the present revision is not maintainable laying emphasis on the expression “including a case arising out of the original suit or other proceedings instituted before the commencement of the Code of Civil Procedure (Odisha Amendment) Act, 2010”.

#13. As found place in Sub-section (1) of Section 115 of the said Odisha Amendment Act, it can safely be said that the amendment of 2010 shall have effect on the original suit or other proceeding instituted before the commencement of the said Odisha Amendment Act.

#14. In view of the Simplex Engineering & Foundary Works Ltd. (supra), as relied on by the learned counsel for the petitioner, it is reiterated that if the application is registered as Misc. Case (Interlocutory Application) in accordance with the provisions of the Code of Civil Procedure, 1908 read with the General Rules & Circular Orders that can be termed and determined as a proceeding for the purpose of Section 115 of the Code of Civil Procedure. In such view of the matter, the civil revision petition is thoroughly misconceived on the anvil ratio decided on in the said reported case read with the Code of Civil Procedure (Odisha Amendment) Act, 2010.

#15. It may be relevant to take note of the fact that one of the defendants, namely, Sri Asit Kumar Samantaray (defendant No.1) in C.S. No.535 of 2007 filed the CRP No.34 of 2008 challenged the very same order dated 22.05.2008 passed by the learned Civil Judge (Senior Division), Bhubaneswar rejecting the application filed by the said defendant under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the dispute in terms of Clause 25 of the agreement dated

31.08.2002 which the plaintiff (V.Raj Kumar Raju) relied upon in the suit.

15.1. Though notices were issued on 17.06.2008 in the said CRP No.34 of 2008, wherein the present petitioner was also impleaded as one of the opposite parties, this Court granted stay of further proceeding in C.S. No.535 of 2007 pending before the Court of the learned Civil Judge, (Senior Division), Bhubaneswar.

15.2. This Court vide order dated 18.09.2008 disposed of the said CRP No.34 of 2008 with the following order:- “Learned counsel for the petitioner files a memo in Court today to withdraw the Civil Revision and moves before the appropriate forum. Accordingly, the Civil Revision as we as the Misc. Case is disposed of as withdrawn. The Memo be kept on record. Liberty is given to the petitioner to move before the appropriate forum, if so advised. Certified copy of the impugned order, if any, be returned to the learned counsel for the petitioner after substituting the xerox copy of the same.”

15.3. As it appears from the aforesaid order that the petitioner having realised that the revision under Section 115 of the Code of Civil Procedure after amendment by virtue of the Code of Civil Procedure (Odisha Amendment) Act, 2010 is not maintainable before this Court. Therefore, learned counsel for the petitioner sought to withdraw the said civil revision petition to pursue his remedy before the appropriate Court.

#16. Considering the contentions and arguments of the learned counsel for the petitioner and on perusal of record, with the aforesaid discussions and reasons assigned, this Court has no jurisdiction to entertain the civil revision petition. Accordingly, the civil revision petition stands dismissed and, consequently, all the interim order passed earlier stands vacated. Laxmikant (M.S. Raman) Judge Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2024 18:23:45