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M/S.CHOUDHARY CONSTRUCTION COMPANY versus STATE OF RAJ. & ORS.

High Court of Rajasthan

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M/S.CHOUDHARY CONSTRUCTION COMPANY v STATE OF RAJ. & ORS. - CW Case No. 4104 of 2002 [2004] RD-RJ 542 (3 November 2004)

S.B. Civil Writ Petition NO.4104/2002

M/s Choudhary Construct Company vs. State of Raj. & Ors.

Date of Order : 03-12-2004

HON'BLE MR. PRAKASH TATIA,J.

Ms. Rekha Borana, for the petitioner.

Mr. L.R. Upadhyay, for the respondents.

Heard learned counsel for the parties.

The petitioner has challenged the order of learned

District Judge dated 8.4.2002 by which the learned District

Judge refused to appoint the Arbitrator by following the procedure provided under sub clause (a) of sub-section 4 of

Section 11 of Arbitration and Conciliation Act, 1996 and directed petitioner to follow the procedure as provided under Clause (23) of the agreement between the parties.

According to learned counsel for the petitioner, the petitioner served a notice upon the respondents raising demand on 25.12.1998 and thereafter, demanded from the respondents that the matter may be referred to the

Committee under Clause (23) of the agreement between the parties. Copy of this letter is placed on record as

Annexure-3A. According to learned counsel for the petitioner, the petitioner in his petition filed under

Section 10 and 11 of the Arbitration and Conciliation Act, 1996 specifically pleaded that the petitioner after serving the notice, made request for referring the matter to the

Committee under Clause (23) for deciding the dispute between the parties. It is also submitted that the respondents in their reply to the petitioner's petition before court below specifically admitted that they received the request of the petitioner under Clause (23) for sending the dispute to the standing Committee. Not only this but respondents themselves admitted that they forwarded the matter to the authorities for sending the matter to the standing Committee as required under Clause (23). Since, the respondents failed to constitute the Committee for deciding the petitioner's dispute, therefore, as per sub- clause (a) of sub-Section 4 of Section 11 of the Act of 1996, the petitioner was entitled for appointment of the

Arbitrator through Court, but the court below ignoring all these facts directed petitioner to follow the procedure as provided under Clause (23) of the agreement which the petitioner had already followed and thereafter submitted the petition for appointment of the Arbitrator under

Section 11 of the Act of 1996.

Learned counsel for the respondents submitted that the matter has been referred to the standing Committee by order dated 7.5.2004, copy of which is placed on record as

Annexure-R/1. It is also submitted that the petitioner himself initiated proceedings in civil Court by filing civil suit and, therefore, the Arbitrator cannot be appointed and the suit is still pending.

It appears from the facts of the case, that the learned District Judge has not read the petition filed by the petitioner wherein the petitioner categorically submitted that the petitioner served a notice upon the respondents and, thereafter, submitted a request under

Clause (23) of the agreement and thereafter, submitted petition under Section 11 for appointment of the Arbitrator because the respondent failed to refer the matter to the

Committee in time and that time is one month from service of the notice. It is also relevant to mention here that petitioner has placed on record the copy of the demand notice dated 17.2.1999 (Annex. 3A) wherein the petitioner specifically stated that petitioner is enclosing the demand draft as required under Clause (23) for sending the matter to the standing Committee for deciding the dispute between the parties, as Arbitrator. All these facts were not taken into account while passing the impugned order dated 8.4.2002 by the court below, therefore, the order appears to be passed by ignoring the facts of this case and by misreading the petition. Therefore, the order dated 8.4.2002 deserves to be set aside only on this ground as the petitioners have already complied with the conditions as required under Clause (23).

So far as allegation of the respondents that the petitioner has already availed the remedy of the filing of the suit and that suit is pending, has no relevance in the facts of the case because before this Court, the order under challenge is the order of the Court below dated 8.4.2002 by which the court below directed petitioner to comply with the Clause (23) of the agreement between the parties which the petitioner has already been complied with.

At this stage, learned counsel for the petitioner submitted that during pendency of the writ petition, the jurisdiction of the District Court has been limited to the extent of the dispute having the pecuniary valuation of

Rs.5,00,000/- but the petitioner's dispute is beyond that limit, therefore, the petitioner's petition is maintainable before the High Court in view of the provisions of law.

In view of the above, the writ petition of the petitioner is allowed and the order dated 8.4.2002 is set aside. Learned District Judge is requested to pass an appropriate order on the petition of the petitioner either returning the petitioner's petition for representation before proper Court or of sending the petition to the High

Court in accordance with the Rules. [PRAKASH TATIA],J.

Praveen


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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