M/s Brij Lal Mohan Lal v. H.P.Agro Industries Corporation Ltd & Anr.

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 `gian' ( A.N.JINDAL ) JUDGE