The General Manager, Tamil Nadd Indian oil Corporation Ltd., The Chief Divisional Retail, Sales Manager, Indian Oil Corporation Ltd. and The Manager (Sales), Indian Oil Corporation Ltd. vs S. Thanigaimani, COCO Job Contractor

M. Chockalingam, J.—Aggrieved over an order of the learned VII Assistant Judge, City Civil Court, Madras, dismissing an application

seeking rejection of the plaint, under Sec. 8 of the Arbitration and Conciliation Act and Order 7 Rule 11 of the Civil Procedure Code, the

defendants have brought forth this revision petition.

The respondent herein filed a suit in O.S.No.1331 of 2004 seeking a declaration and permanent injunction. The defendants, who are the

petitioners before this Court, entered appearance and filed the instant application seeking the relief of rejection of the plaint. The said application

was opposed by the respondent/plaintiff stating that the application was not maintainable. The lower Court dismissed the application on two

reasons. Firstly, the issue to be decided in the case, was one which could be decided only in the suit. Secondly, the petitioners, who have sought

the rejection of the plaint, have not come forward with an application under Sec. 8 of the Arbitration and Conciliation Act, seeking a direction from

the Court to refer the dispute to arbitration.

Heard the learned Senior Counsel for the petitioners and the learned Senior Counsel for the respondent also. Affidavit in support of the

application before the lower Court is perused.

It is not in controversy that Ex.P6 contains an arbitration clause (55). According to the petitioners, as per the said clause, the matter has got to

be settled between the parties by way of an arbitration, and the same has been referred to in the affidavit in support of the application, and hence,

instead of approaching for arbitration, the plaintiff has filed the suit, and under the circumstances, the suit has got to be rejected. True it is that the

petitioners before this Court, who are the defendants, have not sought the relief in the said interlocutory application that the matter has got to be

referred to arbitration; but, they have sought the rejection of the plaint. It remains to be stated that in the petition filed before the lower Court, the

defendants have not only mentioned Order 7 Rule 11 C.P.C., but also Sec. 8 of the Arbitration and Conciliation Act, and thus, it would be clear

that the intention of the party while making the petition before the lower Court, was to get an order under Sec. 8 of the Arbitration and Conciliation

Act.

It is also an admitted position that Clause 55 of Ex.P6 speaks of the arbitration clause. In such circumstances, the reason adduced by the lower

Court that the petitioners have not sought a direction by the Court to refer the matter to arbitration, but have asked for the rejection of the plaint

cannot be accepted. Hence, this Court is of the considered opinion that the order of the lower Court has got to be set aside, remitting the matter

back to the lower Court.

Accordingly, this civil revision petition is allowed, setting aside the order of the lower Court and remitting the matter back to the lower Court. It

is made clear that the petitioners should be given an opportunity for making necessary amendments in the application before the lower Court. On

such amendment, an opportunity should be given to the respondent/plaintiff for making his counter. The lower Court is directed to dispose of the

application on merits and in accordance with law. No costs. Consequently, connected CMP is closed.