Karnataka High Court
Mr. Paramjit Singh Kochar vs Mr. Dalton Correya on 5 September, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
WRIT PETITION Nos.30217-218/2012(GM-RES)
BETWEEN
1. MR.PARAMJIT SINGH KOCHAR
S/O BHAGWANT SINGH
AGED ABOUT 73 YEARS
2. MR.PRABHPRIT SINGH KOCHAR
S/O PARAMJIT SINGH KOCHAR
AGED ABOUT 41 YEARS
BVOTH PETIIONERS ARE RESIDING AT
FLAT NO.106, BRIGADE PARAMOUNT
NAGAVARPALYA
C.V.RAMAN NAGAR
BANGALORE-560 093 ... PETITIONERS
(BY SRI.AMARCHAND & MANGALDAS, ADVOCATES)
AND
1. MR.DALTON CORREYA
S/O MR.MODESTUS CORREYA
AGED ABOUT 37 YEARS
RESIDING AT FLAT NO.105
BRIGADE PARAMOUNT
NAGAVARPALYA
C.V.RAMAN NAGAR
BANGALORE-560 093
2. M/S BRIGADE ENTERPRISES PVT.LTD.
HULKUL BRIGADE CENTRE
82, LAVELLE ROAD
2
BANGALORE-560 001
REP. BY ITS MANAGING DIRECTOR
3. M/S BRIGADE PARAMOUNT APARTMENT
OWNERS' WELFARE ASSOCIATION
BRIGADE PARAMOUNT APARTMENT
NAGAVARAPALYA
C.V.RAMAN NAGAR
BANGALORE-560 093
REPRESENTED BY ITS SECRETARY
......RESPONDENTS
(BY SRI M.A.SEBASTIAN, ADVOCATE FOR R1;
SRI A.PATIL, ADVOCATE FOR R2;
SRI R.CHANDRASHEKAR, ADVOCATE FOR R3)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA, PRAYING TO QUASH OR SET-ASIDE THE
IMPUGNED ORDER DATED 20.7.2012 PASSED ON
I.A.NO.III VIDE ANNEX-F IN O.S.NO.2792/11 BY THE
VII ADDL. CITY CIVIL JUDGE AND ALLOW THE
APPLICATION SEEKING REFERENCE OF DISPUTES TO
ARBITRATION IN ACCORDANCE WITH ARTICLE 63 OF
THE BYE-LAWS OF "BPAOWA".
THESE WRIT PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
The petitioners' application filed under Section 8 of the Arbitration and Conciliation Act, 1996 is rejected by the Court below mainly on the ground that the dispute has arisen prior to cause of action of the suit. The trial Court has also observed that the bye-laws of the second defendant are subsequent to the cause of action.
2. On both the counts, the Court below is not correct. The bye-laws of the association are in existence much prior to 2009. Merely because they were produced by second respondent along with the proceedings of annual general body meeting dated 30-05-2010, it cannot be said that the bye-laws were framed only on that day. It is not in dispute that the bye-laws were framed much prior to the date of cause of action for filing the suit.
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Section 8 of the Arbitration and Conciliation Act clearly reveals that the judicial authority before which an action is brought in the matter which is a subject matter of arbitration agreement, shall refer the parties to arbitration in case if a party so applies for the same.
3. In the matter on hand, the respondent No.1 herein has field a suit for injunction. In the said suit, the petitioners herein who were the defendants filed an application under section 8 of the Arbitration and Conciliation Act, praying for referring the matter to the Arbitration Tribunal for adjudication. It is well settled that it is not necessary that arbitration agreement must be already in existence before the action is brought in the Court. In the matter on hand, the arbitration agreement was already in existence even prior to filing of the suit. Even otherwise, it is not necessary that the arbitration agreement must already be in existence before the 5 action is brought in the court. In view of this, the impugned order is liable to be quashed and accordingly, the same is quashed. The Court below is directed to rehear I.A.No.8 filed by the petitioners and pass orders as per law.
The writ petitions are disposed of accordingly.
Sd/-
JUDGE Yn.