Calcutta High Court (Appellete Side)
West Bengal Surface Transport ... vs Howrah East West Mini Bus Association on 18 August, 2010
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
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Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Prabhat Kumar Dey
F.M.A.T. No. 16 of 2010
West Bengal Surface Transport Corporation Ltd.
Versus
Howrah East West Mini Bus Association
For the Appellant: Mr. Probal Mukherjee,
Mr. Suhrid Sur.
For the Respondent: Mr. Rameswar Bhattacharjee,
Mr. S. Bandopadhyay.
Heard on: 16.06.2010.
Judgment on: 18th August, 2010.
Bhaskar Bhattacharya, J.:
This appeal is at the instance of a defendant in a proceeding under Section 9 of the Arbitration and Conciliation Act (hereinafter referred to as the Act) and is directed against Order No.2 dated November 16, 2009 and Order No.3 dated November 20, 2009 passed by the learned Judge, Eleventh Bench, City Civil Court at Calcutta in Miscellaneous Case No.5581 of 2009 thereby directing the present appellant and its men, agents and/or their counterpart being PVD 2 and DC, Traffic, Calcutta and/or RTO, Barasat, Alipore and Howrah to maintain status quo regarding plying of 25 vehicles described in the schedule to the petition in the modified route from Shalimar Station/B.E. College to SDF (Salt Lake) via Mandirtala - Vidya Sagar Setu, Rabindra Sadan etc. upon payment of current monthly permit fees and after deducting the Toll Tax incurred till further order on condition that the petitioner will take recourse of Section 11 of the Act within one month from the date of this order.
By the order No.3, the learned Trial Judge further directed the RTO, Motor Vehicles, Howrah and District Magistrate, Howrah to forthwith release the bus having Registration No.WB-11B-0848 in favour of the respondent under a list of inventory.
Being dissatisfied, the defendant in the proceeding has come up with the present appeal.
Mr. Mukherjee, the learned advocate appearing on behalf of the appellant, at the outset, without entering into the merit of the matter submitted before us that on the face of the averments made in the application under Section 9 of the Act, the learned Judge, City Civil Court at Calcutta, had no territorial jurisdiction to entertain the proceeding and on that ground alone this Court should set aside the order impugned.
Even on merit, Mr. Mukherjee submitted that the learned Trial Judge erred in law in passing the restraint order upon various statutory authorities 3 from functioning in accordance with the provision of the Motor Vehicles Act and Rules framed thereunder on the basis of an application under Section 9 of the Act. In other words, Mr. Mukherjee contends that the interim orders impugned in this appeal were beyond the scope of the dispute involved in the application under Section 9 of the Act between the parties and as such, the learned Trial Judge erred in law in passing such order.
Mr. Bhattacharjee, the learned advocate appearing on behalf of the respondent, on the other hand, has supported the order impugned and has contended that the dispute involved being in respect of the bus route, part of which falls within the territorial limit of the City Civil Court at Calcutta, it should be presumed that part of cause of action has arisen within the jurisdiction of the City Civil Court and as such, the suit was quite maintainable.
Even on merit, Mr. Bhattacharjee contended that the learned Trial Judge did not commit any illegality as the various statutory authorities took penal measure upon the members of the respondent at the instance of the appellant and, therefore, there was nothing illegal in passing the order impugned.
Therefore, the first question that falls for determination in this appeal is whether even on the basis of the averments made in the application under Section 9 of the Act the City Civil Court at Calcutta had jurisdiction to entertain the proceeding.
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To appreciate the scope of the application under Section 9 of the Act, the same is quoted below:
"Interim measures, etc. by Court.--A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court:--
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure of protection in respect of any of the following matters, namely:--
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it."
(Emphasis supplied by us).
According to Section 2(e) of the Act, the word "court" is defined as follows: 5
" "Court" means the Principal Civil Court of Original Jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject- matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such Principal Civil Court, or any Court of Small Causes;"
After going through the application under Section 9 of the Act we find that Howrah East West Minibus Association represented by its Secretary having its office at Kali Prasad Banerjee Lane, Howrah 711101 is the applicant and the West Bengal Surface Transport Corporation Limited, a limited liability concern, incorporated under the Companies Act having office at 37 Despran Sasmal Road, Kol-700040 is the opposite party. Therefore, neither the applicant nor the opposite party had place of business within the territorial limit of City Civil Court at Calcutta.
In the body of the application under Section 9 of the Act, it is stated that the parties entered into an agreement dated 24th December, 2008 in respect of operating leasehold fleet through the route mentioned in the schedule. In the said agreement, it is specifically provided if any dispute or difference arises out of the agreement, the same should be referred to the Chairman of the West Bengal Surface Transport Corporation Limited whose office is situated within the territorial limit of the District- 24 Parganas (south). Therefore, even the place of arbitration is not within the jurisdiction of the City Civil Court at Calcutta. 6
On going through the contents of the application under Section 9 of the Act, we find that in the body of such application no statement has been made showing how the City Civil Court, Calcutta, had jurisdiction to entertain the dispute. It appears that the nature of dispute involved is the alleged change of route and according to the applicant, the route through Vidya Sagar Setu is causing hardship to the applicant because the applicant was required to pay additional charge of Rs.200/- a day as the toll charge. The applicant alleged that although it is signatory of the agreement of December, 2008 without going through the contents of the same its representative put his signature.
The prayer made under Section 9 of the Act is quoted below:
"a) To direct the R.T.O., Motor Vehicles, Howrah and/or the D.M., Howrah to forthwith release the Bus bearing Registration No.WB-
11B-0848 in favour of your petitioner.
b) To restrain the opposite party their men, agents and/or their Counterpart being the P.V.D. and D.C., Traffic, Calcutta and/or R.T.O., Barasat, Alipore and Howrah and/or S.P., 24 Parganas (North) & (South) and Howrah from seizing the aforesaid Twenty five Vehicles mentioned in the Schedule below and/or from doing anything prejudicial to the interest of your petitioner.
c) To restrain the opposite party, their men and agent and/or their Counterpart being the P.V.D. and D.C., Traffic, Calcutta and/or 7 R.T.O., Alipur and Howrah from causing any disturbance in respect of plying of all the Twenty five Vehicles mentioned in the Schedule below, in the modified Route from Shalimar Station/B.E. College to S.D.F. (Salt Lake) Via Mandirtala - Vidya Sagar Setu, Rabindra Sadan, Lenin Sarani, Moulali, Beliaghata, Sales Tax, Building More, Chingrighata, Nicco Park upon payment of the current monthly permit fees after deducting the actual Toll tax incurred, till the monetary dispute is resolved through Arbitration.
d) For ad-interim order in terms of prayer (b) and (c) above.
e) To direct the opposite party and/or the concerned authorities to forthwith complete all the formalities regarding issue of permit and plying of the aforesaid Five Vhicles bearing Registration No.WB-11B- 0741, Registration No.WB-11B-0848, Registration No.WB-11B-0950, Registration No.WB-11B-1050 and Registration No.WB-11B-1061 in the modified Route from Shalimar Station/B.E. College to S.D.F. (Salt Lake) Via Mandirtala - Vidya Sagar Setu, Rabindra Sadan, Lenin Sarani, Moulali, Beliaghata, Sales Tax, Building More, Chingrighata, Nicco Park. Due to the modified Route through Vidya Sagar Setu.
f) To pass other order or orders as the Ld. Court may deed fir and proper."
8After hearing the learned counsel for the parties and after going through the definition of "Court" quoted above, we are convinced that the City Civil Court at Calcutta had no territorial jurisdiction to entertain the dispute involved in the application as neither the parties nor the place of arbitration falls within the jurisdiction of the City Civil Court. Even no special fact has been alleged in the application from which it can be inferred that any part of the cause of action had arisen within the territorial limit of the City Civil Court enabling it to entertain a dispute between the two parties, one residing in Howrah and the other in South 24 Parganas. The real dispute is whether the applicant with knowledge had signed the agreement between the parties dated December 24, 2008, which was admittedly not executed within the territorial limit of the City Civil Court at Calcutta.
We, therefore, find substance in the contention of Mr. Mukherjee that on the face of averments made in the application under Section 9 of the Act, the learned Judge, City Civil Court, Calcutta had prima facie no territorial jurisdiction to entertain the proceedings and on that ground alone the orders impugned are liable to be set aside.
Apart from the aforesaid fact, there cannot be any order of injunction restraining the P.V.D. and D.C., Traffic, Calcutta and/or R.T.O., Barasat, Alipore and Howrah and/or S.P., 24 Parganas (North) and (South) from causing the vehicle seized as on the face of the statements made in the application under Section 9 of the Act, the action taken by the Police Authority was due to non- 9 compliance of the members of the applicant by not plying the vehicles through the approved route mentioned in the agreement between the parties. The Authority under the Motor Vehicle Act cannot be restrained from taking action under the Motor Vehicles Act if any of the vehicles violates the terms of the route permit and in such a case, a Court dealing with an application under Section 9 of the Act should not pass an order of injunction against a statutory authority simply because there was dispute between the lessor and lessee as regards the extent of route. Moreover, the Police Authority is also not a party to the proceedings.
We, therefore, set aside the orders impugned in this application not only on the ground that City Civil Court had prima facie no territorial jurisdiction but also on the ground that nature of injunction sought for by restraining the police authority from taking action even in violation of plying of vehicle from the approved permit was on the face of it erroneous and no direction can be given to the police authority for return of the vehicle otherwise than by due process of law. The filing of an application under Section 9 of the Act is not the appropriate remedy for an aggrieved party if it is dissatisfied with any action taken by police for violation of the provision of the Motor Vehicles Act or rules framed thereunder.
We, consequently, allow the appeal by dismissing the application under Section 9 of the Act on the grounds mentioned above.
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In the facts and circumstances, there will be, however, no order as to costs.
(Bhaskar Bhattacharya, J.) I agree.
(Prabhat Kumar Dey, J.)