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Judgment
K.R. Mohapatra, J
This matter is taken up through hybrid mode.
The Petitioner in this CMP seeks to assail the order dated 16th August, 2022 (Annexure-7) passed by learned Civil Judge (Junior Division), First Court, Cuttack in C.S. No.616 of 2019, whereby allowing an application under Section 8 of the Arbitration and Conciliation Act, 1996 (for short ‘the Arbitration Act’), learned trial Court directed the parties to proceed for arbitration in terms of Clause-17 of the Lease-cum-Hypothecation Agreement dated 14th April, 2011 executed between the parties.
Mr. Pattanaik, learned counsel for the Petitioner submits that the suit has been filed for permanent injunction to restrain the Defendants from transferring the ownership of the vehicle in question in favour of any 3rd party. It was also prayed for cancelling the license of Defendant No.1 for not following the guidelines as specified. Few other consequential and ancillary reliefs are also sought for. On their appearance, Defendant No.1-Opposite Party No.1 filed an application under Sections 5 and 8 of the Arbitration Act to refer the matter to the Arbitrator in terms of the Lease-cum-Hypothecation Agreement. Along with the said application, an arbitration award in respect of the dispute between the parties out of the aforesaid agreement was also enclosed.
It is his submission that once an arbitration award has already been passed, an application under Section 8 of the Arbitration Act is not maintainable. Without considering the objection raised by the Petitioner and without delving into the scope and ambit of the provisions of the Arbitration Act, learned trial Court passed the impugned order under Annexure-7. Hence, this CMP has been filed.
Mr. Samant, learned counsel for Opposite Party No.1 submits that once an arbitration award has already been passed, the civil suit on the selfsame cause of action is not maintainable. The Petitioner has filed the civil suit suppressing the same. If the Petitioner is aggrieved by the arbitration award, remedy under Section 34 of the Arbitration Act is available to him. Without resorting to the same, the suit has been filed. Hence, an application under Section 8 of the Arbitration Act was filed. Learned trial Court considering the same passed the impugned order. Thus, the CMP being devoid of any merit should be dismissed.
Considering the rival contentions of the parties and on perusal of the record, it appears that an arbitration award has already been passed in respect of the dispute arising out of the agreement. However, an application under Section 8 of the Arbitration Act was filed by the Opposite Party No.1 to refer the matter to the Arbitration.
When an arbitration award has already been passed in terms of Clause-17 of the said agreement, question of entertaining an application under Section 8 of the Arbitration Act to refer the matter to arbitration, does not arise at all. The same has not been taken into consideration by learned trial Court. Hence, the impugned order under Annexure-7 is not sustainable and is set aside.
The matter is remitted back to learned trial Court for fresh consideration of the petition filed by Opposite Party No.1 under Sections 5 and 8 of the Arbitration Act afresh keeping in mind the observation made herein above giving opportunity of hearing to the parties concerned.
With the aforesaid observation and direction, the CMP is disposed of.
Urgent certified copy of this order be granted on proper application.
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