Delhi District Court
Shri Rishab Kumar Sogani vs M/S Alankit Imaginations Ltd on 11 August, 2009
IN THE COURT OF SH. KAMLESH KUMAR; AD&SJ(CENTRAL)-17, DELHI
MCA No. 01/09
Shri Rishab Kumar Sogani ........Appellant
S/o Late Shri Shikhar Chand Sogani
R/o G-83/304, Vijay Chowk,
Laxmi Nagar,
Delhi-110092
Versus
M/s Alankit Imaginations Ltd.
Through its Managing Director Sh. Alok Aggarwal,
At 2E/8, Jhandewalan Extension,
New Delhi ........Respondent
ORDER
This is an appeal directed against the Order dated 26.03.2009 passed by the Trial Court, on an application under Section 151 CPC, in the suit for recovery filed by the Appellant/Plaintiff Sh. Rishab Kumar Sogani against the Respondent / Defendant M/s Alankit Imaginations Ltd.
2) The facts, stated briefly, leading to the filing of the suit/application under Section 151 CPC and appeal arising therefrom, are that the Appellant/Plaintiff had dealings with the Respondent / Defendant, in respect of purchase and sale of items of commodity market. The Appellant / Plaintiff paid the commission for respective transactions which were made through cheques. The
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Appellant / Plaintiff's mobile phone was stolen on 05.08.2005 while he was in the office of the Defendant. The Appellant / Plaintiff lodged a complaint with the Police Station Pahargunj and a case u/s 379/420 IPC was registered against the Defendant. The Appellant/Plaintiff visited the office of Defendant on 12.08.2005 for collecting cheque of his dues of Rs.1,64,000/- against the transactions made for commodity market and was told that only an amount of Rs.12027.45 was outstanding and payable to him. The Defendant did not pay the balance amount of Rs.1,52,000/-. The Appellant/Plaintiff, however, got encashed the cheque for Rs.12,027.45 without prejudice to his rights and under protest. The Defendant failed to pay the outstanding amount of Rs.1,52,000/- despite repeated demands and hence suit for recovery of Rs.1,70,240/- was filed by the Appellant/Plaintiff.
3) The Respondent / Defendant contested the suit and moved an application under Section 8 of the Arbitration & Conciliation Act 1996. The Respondent claimed that the Appellant/Plaintiff had entered into an agreement dated 30.06.2005 for opening an account for commodities derivatives contract. The Appellant/Plaintiff also had undertaken to abide by the bye-laws of Multi Commodity Exchange of India Ltd. (MCX), clause 15 of which provided
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comprehensive mechanism for resolution of dispute by arbitration. The Respondent / Defendant claimed that the claim made by the Appellant / Plaintiff was a dispute between a member and a constituent and therefore, was covered by Clause-15 of the said bye- laws. The Respondent/Defendant claimed that the suit was not maintainable.
4) The matter was referred to the Mediation Cell with the consent of both the parties. Both the Appellant/Plaintiff and Respondent/Defendant settled the matter / dispute voluntarily without any force, pressure or coercion. The Plaintiff agreed to withdraw the suit and to exercise his option of filing the claim before the Arbitrator or any other appropriate Authority. The suit filed by the Appellant/Plaintiff was, accordingly, disposed of in terms of settlement arrived at between the parties.
5) The Appellant/Plaintiff thereafter approached MCX and moved an arbitration application. The said application, however, was returned by MCX on the ground that limitation period of six months had already expired. The Appellant/Plaintiff then moved an application u/s 151 CPC praying for liberty for approaching the Arbitrator for filing the application, on the same cause of action on
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which the suit was filed. The application was dismissed by the Trial Court clarifying that the Appellant/Plaintiff was at liberty to exercise his option of filing claim before any appropriate authority but that shall not be construed as extending the period of limitation prescribed by MCX.
6) The Appellant/Plaintiff moved another application under Section 151 CPC seeking extension of period of limitation. The said application was also dismissed vide order dated 26.03.2009 by the Trial Court holding that there was no case for extending the limitation period and that the inherent powers of the court can not be exercised when a specific provision exists in the code. The Trial Court also observed that the said application infact sought review of the order dated 26.07.2008 passed by the Trial Court, which was time-barred.
7) Aggrieved by the said order dated 26.03.2009 passed by the Trial Court, the Appellant has preferred the appeal on the following grounds inter alia: (i) that the impugned order is bad in law and against the principles of equity and natural justice; (ii) that the Trial Court failed to apply the judicial mind while passing the impugned order and failed to consider the proceedings before the Mediation
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Cell; (iii) that the Trial Court failed to consider that an appropriate application was moved before the MCX for arbitration immediately after disposal of the Civil Suit; (iv) that the Trial Court has failed to consider that the suit was disposed of as compromised between the parties and therefore delay was condoned by the opposite party; (v) that the Trial Court failed to consider that the letter dated 24.11.2008 of MCX was arbitrary, biased and without any authority;
(vi) that the Trial Court erred in law in not extending the period of limitation for moving the appropriate application before the appropriate forum in terms of settlement before the Mediation Cell.
8) The Appeal has been contested on behalf of the Respondent/Defendant. Ld. Counsel for the Respondent/Defendant chose not file any written reply but contested orally on the ground that the Trial Court had not committed any error of law or fact in the matter and that the period of limitation for entertaining an application for arbitration by MCX could not have been extended by the court.
9) I heard the ld. counsel for the parties at bar and have carefully gone through the entire material, including the Trial Court record.
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10) The Appellant has contended that the Trial Court has committed grave error of law in not extending the period of limitation for filing the arbitration petition before the MCX since the settlement was arrived at in the Mediation Cell and the Respondent had consented for withdrawal of the suit. The Appellant's contention is that in view of the compromise between the parties, the limitation period ought to have been extended. Ld. Counsel for the Respondent, on the other hand, argued that the Respondent had only agreed that the Appellant / Plaintiff may approach MCX or any other appropriate authority since the suit was not maintainable.
11) I am not in conformity with the Appellant/Plaintiff. The Appellant had filed a suit for recovery of Rs.1,70,240/-. As per Clause-15 of MCX byelaws, the parties had to resolve the dispute through arbitration and for this reason, the Respondent/Defendant had moved an application. The Appellant/Plaintiff decided to exercise his option of filing his claim before the Arbitrator or any other appropriate authority and withdraw the suit. The Defendant obviously would have had no objection to the unconditional withdrawal of case. The settlement arrived at in the Mediation Cell resulted in withdrawal of the suit by the Plaintiff. But the said settlement did not entitle him to approach any appropriate authority
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even after the period of limitation. It was for the Appellant / Plaintiff to take correct decision before arriving at any settlement in the Mediation Cell. The law does not permit extension of period of limitation in such cases and the ld. Trial Court rightly rejected the prayer of the Appellant. The Trial Court clearly observed in the order dated 26.07.2008 that the Plaintiff was at liberty to exercise his option but that could not be construed as extending the limitation period prescribed by MCX. I find no error of law or facts in the order of the Trial Court. The appeal clearly has no merits and is liable to be dismissed. I order accordingly.
The Trial Court Record be sent back. Appeal file be consigned to record room.
Announced in the open court (KAMLESH KUMAR )
Today i.e. on 11 August, 2009 ADDITIONAL DISTRICT JUDGE
DELHI
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MCA No. 01/09
11.08.2009
Present: None.
Vide my separate order of the date, the appeal filed by the Appellant/Plaintiff has been dismissed.
Trial Court record be sent back. Appeal file be consigned to record room.
(Kamlesh Kumar) ADJ/Delhi 11.08.2009
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