Delhi District Court
New India Assurance Company Ltd vs M/S Darcl Logistic Limited (Formerly on 27 November, 2018
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
Civ Dj No. 608035/16
New India Assurance Company Ltd.
Division Office: 323200, 2/2A, 3rd Floor
Laxmi Insurance Building, Asaf Ali Road
New Delhi110002. ... Plaintiff No.1
M/s JSL Stainless Ltd
Corporate Office: Jindal Centre
12, Bhikaji Cama Place
New Delhi110066. ... Plaintiff No.2.
versus
M/s Darcl Logistic Limited (Formerly
known as Delhi Assam Roadways
Corporation Ltd)
Regd. Office: M2, Himland House, Karampura
Commercial Complex
New Delhi110015. ... Defendant
O R D E R
1. This is an application under Section 8 of the Arbitration &
Conciliation Act, 1996 filed by the defendant.
2. According to the applicant / defendant, work order dated
21.04.2011 for transportation was executed between the
Civ DJ No.608035/16 New India Assurance Company Ltd & anr. vs. M/s Darcl Logistic Ltd. Page No. 1 of 6
plaintiff no.2 and the defendant vide which transaction was
carried out for delivery of goods from Hissar to Kolkata. The
applicant / defendant states that the Annexure I & II of the said
work order provides general terms and conditions and as per
clause 21 & 20 of the said Annexures respectively, it is clear
that in case of dispute between the parties, the matter will be
referred to the sole arbitration of Sh. Vijay Sharma, Vice
President, JSL Stainless Ltd i.e. plaintiff no. 2 herein whose
decision shall be final and binding on the concerned parties. It
is also stated that as per the terms and conditions of the said
agreement, dispute would be subject to the jurisdiction of
Hissar court only.
3. Reply was filed on behalf of the plaintiffs to the aforesaid
application. According to the plaintiffs, the plaintiff no.2 had
subrogated right and remedy in favour of the plaintiff no.1 to
file the present suit. It is the contention of ld. Counsel for the
plaintiffs that the alleged work order dated 21.04.2011 was
executed between the plaintiff no.2 and the defendant, so, the
insurer / plaintiff no.1 is third party as the plaintiff no. 1 had
neither signed the work order nor was informed about it as per
the documents placed on record. He further urged that the
third party is not bound by terms and conditions of the said
work order limiting jurisdiction of the court and introducing
arbitration proceedings to decide unless it is shown that such a
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third party's attention was specifically drawn to such clause of
the work order and made aware of its implication. He placed
reliance on case reported as AIR 1991 AP 53 (Full Bench),
East India Transport Agency vs. National Insurance Co. Ltd.
He submitted that present application filed under Section 8 of
the Arbitration and Conciliation Act, 1996 be dismissed.
4. Heard ld. Counsel for the parties and perused the record.
5. During the course of arguments, ld. Counsel for the plaintiffs
also contended that annexures are not signed by the plaintiff
no.2, and therefore, terms incorporated are not binding on the
plaintiff no.1. In response to the same, ld. Counsel for the
defendant has drawn attention of this court to the work order
dated 21.04.2011 wherein reference is made to the Annexure 1
and it is specifically provided as:
" Your offer has been accepted subject to the terms
and conditions given in the AnnexureI enclosed with
our enquiry letter dated 04th April, 2011. No other
terms and conditions of whatsoever nature, mentioned
in your offer, would be acceptable to us. No interest
would be paid for delayed payment, if any. Please
arrange to lift the material as per our verbal advice
from time to time and kindly ensure that the goods are
transported to the desired destination within the
stipulated delivery schedule.
You have to provide the suitable vehicle as per the
requirement of the Company. The payment would be
made as per the actual weighment or net guaranteed
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weighment of the vehicle demanded, whichever is
higher.
This transportation contract is issued in duplicate.
You are requested to please return the duplicate copy
of this contract duly signed as a token of your
acceptance of the terms and conditions. In case, we
do not receive signed acceptance copy within 7 days
from the date of Contract letter, we will presume
that you have accepted all terms and conditions
mentioned in the contract."
6. Bare perusal of the aforesaid contents of work order dated
21.04.2011 which is signed by the plaintiff no.2 makes it
apparent that terms and conditions given in Annexure (I) were
acceptable to the plaintiff no.2. Annexure (I) incorporates
general terms and conditions of which clause 21 and 22
provides as:
"21. That in case of any dispute between the parties
or any condition thereof or interpretation of any
condition, the matter will be referred to the sole
arbitration of Sh. Vijay Sharma, Vice President, JSL
Stainless Limited, whose decision/award shall be final
and binding between and upon the parties concerned.
22. All dispute shall be subject to the jurisdiction of
Hisar Courts only."
7. In view of the clause 21 of Annexure (I), it is apparent that the
dispute between the parties i.e. plaintiff no.2 and the defendant
was to be referred to the arbitrator.
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8. Now the issue which is relevant for consideration whether
arbitration clause between the plaintiff no.2 and the defendant
is binding on the plaintiff no. 1 or not. In this regard, ld.
Counsel for the applicant / defendant has drawn attention of
this court to the order passed by the Hon'ble High Court of
Delhi reported as 2014 SCC Online Del 2229 titled as M/s
Rahul Cargo Pvt Ltd vs. M/s National Insurance Company Ltd
& anr wherein, the Hon'ble High Court of Delhi has observed
in para 7 as :
" 7. Once therefore the respondent no.2/plaintiff no.2
transferred his rights under the transportation of contract to the respondent no.1/plaintiff no.1 by virtue of letter of subrogation, the respondent no.1/ plaintiff no.1 steps into the shoes of the respondent no.2/plaintiff no.2 and respondent no.1/plaintiff no.1 therefore will only exercise those rights and obligations between the consignor/plaintiff no.2 and the carrier / petitioner/defendant. Since therefore it cannot be disputed that the respondent no.1/plaintiff no.1 as an insurance company is only suing as a subrogee of the rights of he respondent no.2/plaintiff no.2, i.e. the original rights for claiming loss for the goods lost under the contract of transportation was of the respondent no.2/plaintiff no.2, If the contract of the plaintiff no.2/respondent no.2 with the petitioner/defendant had an arbitration clause, then, this arbitration clause will bind and operate between the respondent no.1/plaintiff no.1 and the petitioner/defendant also. Once the respondent no.2/plaintiff no.2 had a contract of arbitration with the petitioner/defendant, and that is not disputed that there is an arbitration clause in the contract of transportation between the respondent no.2/plaintiff Civ DJ No.608035/16 New India Assurance Company Ltd & anr. vs. M/s Darcl Logistic Ltd. Page No. 5 of 6 no.2 and the petitioner/defendant, then, surely the respondent no.1/plaintiff no.1 who steps into the shoes of the respondent no.2/plaintiff no.2 as its subrogee, will consequently therefore be bound by the arbitration clause binding the respondent no.2/plaintiff no.2 and the petitioner/defendant. ..."
9. Applying the ratio of the aforesaid judgment to the facts of the present case, the plaintiff no.1 vide letter of subrogation has stepped into the shoes of the plaintiff no.2, and therefore will exercise only these rights and obligation which are between the plaintiff no.2 and the defendant. In so far as, reliance on the judgment of East India Transport Agency vs. National Insurance Co. Ltd. (Supra) is concerned, ratio laid down therein is not applicable to the facts of the present case. Accordingly, parties are directed to refer their dispute to the Arbitration in terms of the Arbitration Clause. In view thereof, application under Section 8 of Arbitration & Conciliation Act, 1996 is allowed. File be consigned to Record Room.
Announced in the open court on (Manjusha Wadhwa) this 27th November, 2018. Addl. District Judge04 (West) Tis Hazari Courts, Delhi Digitally signed by MANJUSHA MANJUSHA WADHWA WADHWA Date:
2018.11.29 13:18:54 +0530 Civ DJ No.608035/16 New India Assurance Company Ltd & anr. vs. M/s Darcl Logistic Ltd. Page No. 6 of 6