Calcutta High Court (Appellete Side)
South Eastern Coalfields Limited vs Cart Roadwings Jv on 27 June, 2018
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
2 27.6.2018
FMA 1497 of 2018
gd (FMAT 600 of 2018)
with
CAN 4126 of 2018
South Eastern Coalfields Limited
Vs.
CART Roadwings JV
Mr. K. Dey
Mr. S. Prasad
Mr. P. Bose
..for the Appellant
Mr. Suman Dutt
Mr. K. Thakker
Mr. Ajay Gaggar
Mr. Sanket Sarawgi
..for the Respondent
The deficit court-fees have been put in. A copy of the filing receipt bearing number A- 7597 dated June 27, 2018 is produced in such regard.
The order impugned is not only without jurisdiction, it is alarming and prompts the gravest of inferences to be drawn against the judicial officer.
The respondent is represented and acknowledges without any ado that there is no arbitration agreement between the parties.
Yet, without looking into such basic 2 aspect as to whether he had the jurisdiction to entertain the matter, the District Judge, Alipore proceeded to record the following order which should be regarded as a model of what a judicial order can never be:
"I have perused the application U/s 9 of the Arbitration and Conciliation Act supported by affidavit.
"It is alleged by the petitioner that the opposite party most illegally and whimsically deducting penalty from the pending invoices of the petitioner in the matter as stated in the application.
"I have perused the photocopies of the documents annexed to the application supported by affidavit.
"I have also perused the photocopy of the letter dated 21/02/2018 of the petitioner requesting the OP to initiate arbitration proceeding.
"Having heard Ld. Lawyer for the petitioner on consideration of the application supported by affidavit and on perusal of the documents on record I think that the petitioner has been able to establish a prima facie case to have ad interim injunction as sought for.
"Accordingly, by order of ad interim injunction the opposite party is restrained from deducting any further penalty from the pending invoices of the petitioner till 28th June, 2018.
"Issue notice to the opposite party directing it to show cause by 28/06/2018 as to why the prayer for 3 temporary injunction made by the petitioner shall not be granted.
"The petitioner is directed to put requisites at once.
"The petitioner is directed to take effective steps for appointment of Arbitrator before the date fixed."
Before assuming jurisdiction on a petition under Section 9 of the Arbitration and Conciliation Act or any matter under such Act, it is imperative that the court satisfies itself as to the existence of an arbitration agreement. Such exercise does not appear to have been undertaken in course of the order impugned dated May 19, 2018 being passed.
The arbitration clause appears at page 86 of the appeal-papers. Clause 13 of the conditions of contract provides for the settlement of disputes and it is evident that in cases of contracts between the appellant herein and parties other than government agencies, the arbitration agreement would not be applicable. The same as evident from the following:
"Disputes relating to the commercial contracts with Central Public Sector 4 Enterprises / Govt. Departments (except Railways, Income Tax, Customs & excise duties)/ State Public Sector Enterprises shall be referred by either party for Arbitration to the PMA (Permanent Machinery of Arbitration) in the department of Public Enterprises.
"In case of parties other than Govt. Agencies, the redressal of the dispute may be sought in the Court of Law."
On the finding that there is no arbitration agreement between the parties, this appeal should come to an end. However, the malaise that is epitomised in the order impugned, of judges not given reasons in support of their orders, has also to be addressed.
Though the order impugned runs into several lines, no reasons are indicated therein except the ipse dixit of the judge and his personal satisfaction as to a particular state of affairs. Reasons ought to be indicated to arrive at a conclusion and the order impugned contains the judge's conclusion without indicating the links between the facts and the conclusion.
FMA 1497 of 2018 and CAN 4126 of 5 2018 are allowed by setting aside the order impugned dated May 19, 2018 and by quashing Misc. Case No.326 of 2018. A copy of this order will immediately be reached to the District Judge, Alipore to serve as a warning that such slipshod adjudication is not repeated in future.
The respondent will pay costs assessed at Rs.60,000/-.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) (Abhijit Gangopadhyay, J.) 6