Case Law Details
Anita Mehta Vs Gulkand Hues Private Ltd. & another (Jammu and Kashmir High Court)
HC held that non filing of an application under Section 8 of Arbitration and Conciliation Act, 1996 in the case at hand would not mean that the petitioner had surrendered to the jurisdiction of the court and has left her right to get the disputes resolved through arbitration so as to debar the petitioner for seeking appointment of an arbitrator through the intervention of the Court.
In Rashtriya Ispat Nigam Limited & anr. v. M/s Verma Transport Company : (2006) 7 SCC 275, the Supreme Court held that the expression “first statement on the substance of the dispute” contained in Section 8(1) of the Act is different from the expression “written statement” and observed that supplemental and incidental proceedings are not part of the main proceedings and in view of Section 94 of the CPC supplemental incidental proceedings are those which arise out of the main proceeding and that disclosure of defence for the purposes of opposing a prayer of injunction would not necessarily mean submission of the statement on the substance of the dispute.
An application for rejecting a plaint is distinct from the main proceedings and the averments or the defence if any taken therein is not required to be considered in rejecting the plaint. The rejection of the plaint is on the basis of the averments made in the plaint and no defence or any document filed in defence is to be examined in deciding an application under Order 7 Rule 11 CPC or rejecting the plaint. The provisions of Order 7 Rule 11 CPC are simply procedural in nature so as to prevent vexatious and frivolous litigation and an application there under cannot be regarded as a written statement on the substance of dispute since the defence even if setup in such an application is not supposed to be treated as a defence and examined in deciding such an application. Thus, it would not fall within the expression “first statement on the substance of the dispute”.
In a case like the one at hand, where the petitioner has not filed any written statement but an application under Order 7 Rule 11 CPC for the rejection of the plaint, it would be in the nature of a supplemental or an incidental proceeding of the procedural nature. It would not be a submission of the first statement on the substance of the dispute and therefore the petitioner is not precluded to move an application under Section 8 of the Act before the Civil Court or to seek appointment of an arbitrator. Accordingly, non filing of an application under Section 8 of Arbitration and Conciliation Act, 1996 in the case at hand would not mean that the petitioner had surrendered to the jurisdiction of the court and has left her right to get the disputes resolved through arbitration so as to debar the petitioner for seeking appointment of an arbitrator through the intervention of the Court.
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