Delhi District Court
This Order Of Mine Shall Decide The ... vs Are Members Of The Society And Bound By ... on 31 March, 2015
IN THE COURT OF SH. PRANJAL ANEJA, LD. CIVIL JUDGE-06/
CENTRAL
TIS HAZARI COURTS, DELHI
Suit. No. 02/15 31.03.2015
SARITA RANI GARG V. BASANT KUMAR SINGH
ORDER
1. This order of mine shall decide the application u/s 5 and 8 of Arbitration Act filed on behalf of defendant no. 1 on 19.1.15.
2. It is stated in the present application that plaintiff and defendant no.
1 are members of the society and bound by its Constitution, clause 35 of which stipulates that all disputes between members and Association shall be resolved by means of Arbitration by the Arbitrator appointed by the Committee and no suit is maintainable. It is prayed that the present dispute be therefore referred to Arbitrator.
3. In reply, the application is objected by stating that the plaintiff came to know through sources that plaintiff made sale agreement in favour of defendant no.1 regarding the disputed chamber which is the suit of a civil nature rather than inter personal dispute of Delhi Bar Association's members inter se. That there is nothing to do with the professional dispute with the said member as defendant no. 1 is trying to encroach and trespass the chamber and infact trying to acquire the same through illegal means. That plaintiff never received any consideration for the alleged sale of the disputed chamber and defendant no. 1 is misrepresenting. That the Arbitrator being a private Judge cannot be allowed to hear the dispute as the defendant is not only making serious charges on the plaintiff's character and damaging the reputation but also committing fraud and Suit. No. 02/15 Page No. 1 of 5 Sarita Rani Garg V. Basant Kumar Singh On 31st March, 2015 misrepresentation not only of facts but of his title in the said chamber which makes the issue very complicated and therefore the matter is suitable to be heard before Civil Court and not be referred for Arbitration. Further alleged that in practice it seems that the Arbitrator are appointed which are expected to be pro-Delhi Bar Association which probably would be biased Arbitrator, because Delhi Bar Association sitting officials' response so far towards the plaintiff was not fair and transparent.
4. I have heard the arguments and perused the record.
5. The plaintiff asserts that she being an advocate was enrolled with Bar Council of Delhi in 1994 and she was user and occupant of temporary seat/ chamber no. C- 67, CL Joseph Block, New Post Office, Tis Hazari Courts since 1994 and the Delhi Bar Association of District Court at Tis Hazari has given allotment letter in the year 1999 of this chamber. It is also stated that the original allotment letter has been lost and an FIR has been lodged.
6. It is further alleged by the plaintiff that she visited her said chamber on 22.12.14 and found her name plate being rubbed by defendant no. 1 advocate and breaking open the lock of her chamber and then she called the police. Further alleged that defendant no. 1 approached the Secretary of DBA office, Tis Hazari to change the title of the chamber. It is contended that if some other advocate tries to change the title of the said chamber which is in the name of plaintiff till date, the title shall not be changed in any other Advocate's name without the permission of the plaintiff. The plaintiff asserts that cause of action arose when she lodged Suit. No. 02/15 Page No. 2 of 5 Sarita Rani Garg V. Basant Kumar Singh On 31st March, 2015 her FIR regarding the original allotment letter being lost and also when she called 100 number PCR upon the incident dt. 22.12.14. Plaintiff prays for permanent injunction restraining the defendant not to transfer the title of her chamber to defendant no. 1 or some other advocate and also restraining the defendant from forcibly taking the possession of her chamber.
7. The defendant no. 1 has in the present application taken the plea of Arbitration clause as contained under para 35 of the Constitution of Delhi Bar Association and contends that no suit is maintainable between the members inter se and between member and association.
8. The Constitution of Delhi Bar Association is not disputed by the plaintiff/ respondent. The said para 35 of the Constitution is reproduced as under for the sake of convenience:-
"35. Arbitration:
All disputes, differences between members and members between member (s) and association shall be resolved by means of arbitration by the Arbitrator appointed by the Committee the decision of the Arbitrator shall be final and binding on the contending parties. No suit or legal proceedings shall be maintainable inter-se the members and member(s) and association in any court of law"
9. The plaintiff and defendant no. 1 being members of Delhi Bar Association is not in dispute and therefore the rules / provisions of the Constitution of Delhi Bar Association is applicable upon them. Reading of the above noted clause-35 shows that all disputes and differences between members inter-se and between member(s) and Association are covered under this clause and there is an absolute bar over suit or legal proceedings Suit. No. 02/15 Page No. 3 of 5 Sarita Rani Garg V. Basant Kumar Singh On 31st March, 2015 to be maintainable in any Court. Nowhere this clause stipulates that disputes of only professional nature or inter personal disputes are covered to be resolved by means of Arbitration. There is a controversy with respect to seat/ chamber allotted by none other than Delhi Bar Association i.e. defendant no. 2 and plaintiff seeks injunction against defendant no. 1, also an advocate, by praying that the seat/ chamber no. C-67, C.L. Joseph Block, Opposite Post office, Tis Hazari Courts, Delhi may not be transferred to him or some other advocate. It is noted that clause-3 (xiv) of the Constitution stipulates one of the aims and objects of the Association as allotment and supervision of the use of chambers to the members and to deal with the connected matters. Thus, the allotment and supervision of the chambers is an essential object of DBA and any dispute/ difference with respect to the same is certainly a dispute/ difference as envisaged under the said clause-35 pertaining to Arbitration.
10. The plaintiff/ respondent has relied upon various authorities such as:
➢ N. Radhakrishnan V. M/s Maestro Engineers & Ors. decided by Hon'ble Supreme Court in Civil Appeal No. 7019/09 on 22.10.09, but this authority deals with fraud and misrepresentation but no fraud / misrepresentation has been alleged in the plaint in hand. ➢ ITI Ltd. V. Siemens Public communications AIR 2002 SC 2308 dealt with the question of maintainability of revision petition filed u/s 115 CPC in an appeal preferred u/s 37 of the Arbitration Act, 1996. ➢ Srikumar Textiles (P) Ltd., N. V. Sundaram Finance Ltd. 2008 (1) ARBLR 217 Madras dealt with the law upon Order IX rule 9 CPC. ➢ In Nila Construction Company V. Sanghi Industries Ltd. 2006 (1) ALD 486, it was observed that the provisions of CPC are applicable to Suit. No. 02/15 Page No. 4 of 5 Sarita Rani Garg V. Basant Kumar Singh On 31st March, 2015 the proceedings under Arbitration Act.
➢ M/s Brick Steel V. The Superintending Engineer, PWD 367 (2006) 2 Mad. LJ 769 dealt with the proceedings u/s 34 of Arbitration Act. ➢ Maheshwari Brothers Ltd. V. National Highways Authority 2007 (1) ARBLR 64 Cal, dealt with review proceedings.
➢ In M/s Anuptech Equipments Private V. M/s Ganpati Co-op. Housing AIR 1999 Bom 219, it was observed that the Court cannot intervene suo moto as long as there is remedy under the Act.
➢ In Muthavarpu Venkateswara Rao V. N. Subbarao AIR 1984 AP 200, suit was allowed to proceed because of prima facie proof of fraud. ➢ In Asiasoft (India) Pvt. Ltd. V. Globesyn Technologies Ltd. 2005 (2) ARBLR 264 Delhi, the matter was referred to Arbitration as there was no prima facie evidence of fraud.
➢ M/s S. B. P. & Co V. M/s Patel Engineering Ltd. & Anr (2005) 8 SCC 618 dealt with a question of the function of the Hon'ble Chief Justice or his designate u/s 11 of the Arbitration Act, 1996.
11. Thus, all these authorities, relied upon by the plaintiff/ respondent are of no use to her as the dispute in question is well covered under the Arbitration clause no. 35 of the Constitution of Delhi Bar Association. Consequently, the present suit is not maintainable and the parties are referred to Arbitration as per the said Arbitration clause. Application allowed. Suit disposed of.
Announced in open Court (PRANJAL ANEJA)
on 31.03.2015 CIVIL JUDGE-06, CENTRAL
THC/DELHI/31.03.2015
Suit. No. 02/15 Page No. 5 of 5
Sarita Rani Garg V. Basant Kumar Singh On 31st March, 2015