Case BriefsHigh Courts

Madras High Court: P.T. Asha, J., held that Section 8 of the Arbitration Conciliation Act, 1996 clearly indicate that the role of judicial authority to refer parties to arbitration arises only upon an application being made by a party to the arbitration agreement.

The High Court was faced with a very interesting question: “Whether the Civil Court can act at the threshold in returning/rejecting a Plaint without numbering the suit on the ground that the parties have entered into an Agreement to refer the disputes to arbitration?”

In the present case, there existed a Lease Agreement between the parties. As per Clause 19 of the Agreement, all disputed arising between the parties were to be resolved under the A&C Act. Subsequently, a dispute arose between the parties. The petitioner filed a suit before the District Munsif who returned the suit at the very threshold, observing on the basis of Clause 19 that “this Court does not have jurisdiction to entertain this suit. Hence, this plaint is returned.” Aggrieved thereby, the petitioner approached the High Court.

The High Court referred to Section 9 CPC (courts to try all suits unless barred) and observed Civil Court have to try all suits of civil nature except those suits which have been specifically barred under provisions of some Acts or impliedly barred. Therefore, the Court perused Section 8 of the A&C Act (power to refer parties to arbitration where there is an arbitration agreement). Relying on the decision in P. Anand Gajapathi Raju v. P.V.G. Raju, 2000 (4) SCC 539 and Ameet Lalchand Shah v. Rishabh Enterprises, 2018 SCC OnLine SC 487, the Court observed, “a reading of Section 8 would clearly indicate that the role of the Judicial authority to refer parties to arbitration will arise only upon an application being made by a party to the arbitration agreement or a person claiming under or through him. This window is given only to enable the defendant who is not desirous of having the dispute settled by arbitration to waive his right for having the dispute referred to arbitration. Therefore, from a reading of the above, it is very clear that a Judicial authority cannot suo moto return/reject a suit on the ground that the parties to the suit have agreed to refer all their disputes to arbitration at the threshold when the case is filed.” It was further observed that under the A&C Act, there is no total ouster of jurisdiction of Civil Courts unlike in cases arising under the SARFAESI Act, Motor Vehicles Act, etc. Resultantly, the petition was disposed of by directing the District Munsif to number the suit forthwith on the petitioner resubmitting the returned papers along with the copy of orders. [Convinio Shopping Nine 2 Nine v. Olympia Opaline Owners Assn., 2019 SCC OnLine Mad 646, Order dated 04-03-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of M. K. Hanjura, J. dismissed the applications filed for the transfer of the civil suits sub judice in the Court of the District Judge & Munsiff, Kathua, to any other Court of competent jurisdiction at Jammu or Samba, on the grounds that all the advocates had refused to take up the case.

The facts of the case are that the parties had been in litigation over a piece of land that formed the subject matter of the suits before the Courts for decades and have contested the litigation even up to the Supreme Court. The applicants were represented by Senior Advocates practicing in the District Courts at Kathua and in one of these two suits after they had the receipt of the notice, they approached some Senior Advocates at Kathua to represent them and all of them refused to do so on the ground that the respondents were practicing advocates at District Court Kathua. Thus they filed this application as there was no effective representation.

The Court stated that Section 24 of the CPC does definitely confer powers on the Court to transfer the suits and appeals or other proceedings at any stage, either on application or suo motu but this power vested under Section 24 CPC with the Courts is a discretionary one and cannot be put in a straight jacket formula and should be done with care, caution and circumspection. It is not on the mere asking of a party that a suit can be transferred from one Court to the other. Section 24 of the Code has certain guidelines laid down for the transfer of suits etc., they are the balance of convenience or inconvenience to any party or to witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence; issue raised by the parties; reasonable apprehension in the mind of litigants that they might not get justice in the Court in which suit is pending; important question of law involved or a considerable section of public interested in the litigation; demand of interest of justice etc. On the satisfaction of the principles/guidelines evolved in various judicial dictums, the Court has not only the power but also the duty to transfer the case. But this case did not fall in any of the above guidelines thus the application was dismissed. [Bishan Dass v. State of J&K, CTA No. 01/2015, Order dated 26-02-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Company Law Appellate Tribunal (NCLAT): A Bench comprising of Justice S.J. Mukhopadhaya, Chairperson and Justice Bansi Lal Bhat, Member (Judicial) dismissed an appeal filed against the order of National Company Law Tribunal, Bengaluru disposing of an application filed by the appellant.

The appellant had filed an application under Sections 393, 398, 402 and 406 of Companies Act, 1956 alleging oppression and mismanagement against the respondent company. The application was disposed by NCLT by the impugned order.

Kumar Sudeep and Prasanna S., Advocate appearing for the appellant submitted that he had raised more than 10 issues but only one issue relating to valuation was addressed by NCLT and rest were neither discussed nor decided.

The Appellate Tribunal noted that on a bare perusal of the impugned order it appeared that the appellant raised only one issue before NCLT which was decided. It was observed, “There may be many issues pleaded before the Tribunal but the Tribunal is not required to suo-motu go through all the issues if during the hearing the parties do not address rest of the issues.” The Appellate Tribunal was of the view that the appellant may bring the matter to the notice of NCLT by filing a review petition along with certificate of the arguing counsel that he had argued on the other issues. [B. Govinda Ramesh v. Vinyasa Engg. (P) Ltd., 2019 SCC OnLine NCLAT 4, dated 03-01-2019]

Case BriefsHigh Courts

Delhi High Court: The Delhi High Court took suo motu cognizance of violence and vandalism against members of the Delhi Bar. The Bar in it’s resolution dated 23rd January, 2018 and 22nd January, 2018 mentioned that the Counsel who were victimised were so victimised because they were appearing as counsel for a lady advocate.

The Court noted that there was shocking similarity in the design and manner of the execution of the incidents of violence and vandalism and hence, opined that the incidents could not be treated as separate incidents. The court noted that FIRs have been filed in relation to the incidents but even after a month, minimal steps have been taken by the police in providing assistance and carrying out investigation. The Court, stating that such violence to thwart legal assistance in pending cases is tantamount to criminal contempt of court. In view of above observations, the Court invoked it’s suo motu jurisdiction to call upon an immediate report from the Delhi Police. Also, it directed the matter to be treated as a writ in public interest. [Court on it’s own motion v. Commissioner of Police, Delhi, 2018 SCC OnLine Del 7221, decided on 29.01.2018]

Hot Off The PressNews

Supreme Court: Refusing to take suo motu cognizance in the matter where over 60 children died in a Gorakhpur Hospital, the bench of JS Khehar, CJI and Dr. DY Chandrachud, J asked the advocate, who mentioned the matter before the Court, to approach the High Court instead.

In the last 7 days, over 60 children have died in the Baba Raghav Das Medical College Hospital, Gorakhpur allegedly after the disruption of oxygen supply due to non payment of bills to the oxygen cylinder provider. Many children were infants who were in the intensive care unit.

The Court said that the authorities in UP including the Chief Minister Adityanath Yogi have been handling the situation and if any action needs to be taken then the advocate should approach the Allahabad High Court. The advocate had also sought an SIT probe into the matter.

Source: ANI