Ashok Kumar Bagga vs Ashok Kumar Arora and Another

Aruna Suresh, J.—A suit for permanent and mandatory injunction filed by respondent No. 1 against the petitioner is pending adjudication in the Trial Court. In the said case, petitioner filed an application u/s 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ''the Act''), which was dismissed by the Trial Court vide order dated 2nd February, 2008 with the observations that petitioner had never pressed his objection u/s 8 of the Act and he proceeded with and participated in the trial. Despite the fact that an objection was taken in the written statement, Trial Court was of the opinion that defendant No. 2 had no right to invoke the arbitration clause. 2.

Thereafter petitioner filed another application u/s 89 of the CPC (hereinafter referred to as ''CPC'') for referring the disputes inter se the parties to arbitration. This application was dismissed by the Trial Court vide impugned order dated 17th July, 2008 with following observation:-

I have given my thoughtful consideration. On the last date of hearing a similar application seeking similar relief was dismissed. The present application is based on same grounds as taken in the previous application U/S 8 and nothing new has been pleaded. The case had been passed over for cross-examination of PW-1 but in turn the present application has been moved. There are no merits in the instant application as the issue has already been decided vide the last order and the same is dismissed.

Order of the Trial Court dated 2nd June, 2008 was not challenged by the petitioner and therefore, it has attained finality. By way of an application u/s 89 CPC, petitioner sought similar relief by circumventing the facts and circumstances with a view to get relief of reference of disputes to arbitration.

Section 89 CPC speaks of settlement of disputes outside the court i.e. Alternate Dispute Resolution. Arbitration is one of them. Fact remains, when a reference is made to arbitration for redressal, arbitration has to be conducted by the Arbitrator within the provisions of law contained in the Arbitration and Conciliation Act. The said Act pre-supposes an arbitration agreement inter se the parties for reference of their disputes within the meaning of arbitration clause contained in the agreement. Therefore, consideration of the Arbitral Tribunal and its procedure has to be in accordance with the said Act.

After having failed in his attempt to get the proceedings stayed u/s 8 of the Act, petitioner was debarred from invoking provisions of Section 89 CPC for referring the disputes to arbitration. Under these circumstances, I find no infirmity or illegality in the impugned order of the Trial Court.

Learned counsel for the petitioner has argued that Trial Court vide impugned order, also closed cross-examination of PW-1 and did not permit the petitioner to cross-examine him. I am told by counsel for the respondent that cross-examination of PW-1; Ashok Kumar Arora (respondent No. 1) prior to cross-examination of the petitioner was subsequently allowed by the Trial Court. However, petitioner has failed to cross-examine Ashok Kumar Arora till date. There is no dispute that order of the Trial Court permitting petitioner to cross-examine Ashok Kumar Arora was challenged by the petitioner himself by way of a revision petition and the said petition has been dismissed with costs.

Under these circumstances, when petitioner is misusing the process of law, he deserves to suffer costs.

Hence, petition is hereby dismissed with costs of Rs. 5,000/- to be deposited with Delhi High Court Legal Services Authority within a period of four weeks.