Supreme Court - Daily Orders
Ashutosh Rajender Rai vs Huawei Telecommunications (India) ... on 22 November, 2018
Bench: Uday Umesh Lalit, R. Subhash Reddy
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11253 OF 2018
(Arising out of SLP (C) No.24070/2016)
ASHUTOSH RAJENDER RAI Appellant
VERSUS
HUAWEI TELECOMMUNICATIONS (INDIA)
COMPANY PRIVATE LIMITED Respondent(s)
O R D E R
1. Leave granted.
2. In the present matter, pursuant to appointment order dated 09.08.2004, the appellant came to be appointed by the respondent herein. The appointment order had the following arbitration clause:
“Any dispute herein, including claims of any sort whatsoever by either parties, shall be settled under the (Indian) Arbitration and Conciliation Act, 1996.”
3. On or about 21.02.2013, Special Civil Suit No.141 of 2013 was filed by the appellant in the Court of Civil Judge Senior Division, Thane, contending inter alia that the respondent – employer had Signature Not Verified not been paying salary to the appellant. Digitally signed by R NATARAJAN Date: 2018.12.05 17:29:55 IST Reason: 2
4. In the above suit, a written statement was filed by the respondent on 11.07.2013. A copy of the said written statement is placed on record. Said written statement is conspicuously absent about any plea or suggestion that the relationship between the parties was governed by the aforementioned arbitration clause.
5. Two years thereafter, i.e. in June, 2015 an application under Order VII Rule 11 CPC was moved by the respondent in said suit submitting inter alia that the matter was completely covered by the scope and extent of the arbitration clause and, as such, civil suit was not maintainable. This plea was rejected by the Trial Court.
Said order has attained finality.
6. It appears that soon after the filing of application under Order VII Rule 11 CPC, the respondent independently filed Arbitration Petition No.399 of 2015 in the High Court of Delhi at New Delhi, seeking appointment of Arbitrator in terms of the aforementioned arbitration clause. By its order dated 15.12.2015, the High Court appointed Arbitrator and directed the parties to appear before the learned Arbitrator on 23.12.2015.
7. As per record, the appellant appeared before the Arbitrator and filed his written statement. In the written statement, he did make a mention that a civil suit was filed by him; that, application under Order VII Rule 11 CPC stood dismissed; and that, the civil suit was still pending in the Civil Court. 3
8. This appeal has been directed against the order of the High Court dated 15.12.2015. On 12.08.2016, while issuing notice, this Court stayed the proceedings before the Arbitrator. We have heard Mr. Vinay Navare, learned counsel for the appellant and Mr. Devashish Bharuka, learned counsel for the respondent.
9. It is a matter of record that in the suit filed by the appellant, the respondent did file a written statement. However, no submission was made that the matter was covered by the arbitration clause and that the matter ought to be referred to arbitration. The civil court thus proceeded with the matter. It was only two years after that an application under Order VII Rule 11 CPC was moved. That application was rejected and the order has attained finality. The civil suit having been initiated earlier in point of time where the parties appeared and no objection at the initial stage was raised, that has to be treated as the competent proceedings between the parties.
10. The record is clear that the order rejecting the application under Order VII Rule 11 CPC was not placed on record of the High Court in Arbitration Petition No.399 of 2015.
11. We, therefore, allow this appeal, set-aside the order dated 15.12.2015 and also set-aside the proceedings before the learned Arbitrator. The relationship between the parties shall be governed by the civil proceedings, which are pending before the civil court at Thane.
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12. Considering the facts and circumstances of the case, we permit the respondent to amend its written statement and raise such pleas as are permissible to it in law.
13. The civil appeal stands disposed of in aforesaid terms, with no order as to costs.
.................................J. [UDAY UMESH LALIT] .................................J. [R. SUBHASH REDDY] NEW DELHI;
NOVEMBER 22, 2018.
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ITEM NO.62 COURT NO.8 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (C) No.24070/2016 (Arising out of impugned final judgment and order dated 15-12-2015 in ARBP No.399/2015 passed by the High Court Of Delhi At New Delhi) ASHUTOSH RAJENDER RAI Petitioner(s) VERSUS HUAWEI TELECOMMUNICATIONS (INDIA) COMPANY PRIVATE LIMITED Respondent(s) (IA No.71113/2016 – For Direction) Date : 22-11-2018 This matter was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE R. SUBHASH REDDY For Petitioner(s) Mr. Vinay Navare, Adv.
Ms. Gwen Karthika, Adv.
Ms. Abha R. Sharma, AOR For Respondent(s) Mr. Devashish Bharuka, AOR Mr. Sanjiv Goel, Adv.
Mr. Aditya Singhal, Adv.
Ms. Meera Murali, Adv.
Ms. Sarvshree, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
Civil Appeal stands disposed of, in terms of the signed order. Pending application(s), if any, shall stand disposed of.
(MUKESH KUMAR) (SUMAN JAIN)
COURT MASTER BRANCH OFFICER
(Signed Order is placed on the File)