Punjab-Haryana High Court
Sterling Publishers Pvt. Ltd. vs Haryana State Industrial Development ... on 8 May, 2006
Equivalent citations: (2006)144PLR32
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The plaintiff, is in revision petition aggrieved against the order passed by the learned trial Court on 15.4.2006, whereby an application filed by the defendants, Under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') was allowed and the suit was disposed of by referring the matter to the Arbitrator and directing the parties to appear before him.
2. On 6.7.1989, an industrial, plot No. 48 in Phase IV, Udhyog Vihar, Gurgaon was allotted to the petitioner. In pursuance of the said, allotment, an agreement was executed on 28.7.1989. The said agreement contains Clause 26 about referring the dispute between the parties to the Arbitrator, After the said agreement was executed, a conveyance deed dated 14.7.1995 was executed in respect of plot measuring 1402.50 square metres Clause 13 of the said conveyance deed again contains an arbitration clause that in case of any dispute between the parties, the matter will be referred to the sole arbitration of the nominee of the Secretary to Government of Haryana, Industries Department.
3. On 11.1.2000, the petitioner sought permission of the defendants to grant lease in respect of the part of industrial premises having covered area of 700 square metres for a , time period of 9 years to one Capital Vehicle Sales Pvt. Ltd. The said permission was granted and a supplementary agreement was executed on 27.4.2000. The said agreement contains various clauses i.e. resumption of plot, bifurcation/amalgamation of plots etc. On 8,7.2006, a show cause notice was issued to the petitioner in respect of resumption of plot allotted to the petitioner on account of misuse. Subsequently, an order of resumption was passed on 1.3.2006 on account of said misuse by the. lessee. It is the case of the petitioner that the appeal against the said order has recently been filed in terms of Clause 28 of the supplementary agreement. The Civil Suit for declaration challenging the order of resumption was filed earlier in which defendants had moved an application Under Section 8 of the Act. It is said order, which is impugned in the present revision petition.
4. Learned Counsel for the petitioner has vehemently argued that with the execution of the supplementary agreement on 27.4.2000, the agreement originally executed on . 28.7.1989 stands superseded, Since there is no clause of referring the dispute to the Arbitrator in the supplementary agreement therefore, the matter cannot, be referred to the Arbitrator in terms of Clause 26 of the earlier agreement. It is contended that the agreement dated 27.4.2000 though titled as supplementary agreement is, in fact, an independent agreement and, therefore, agreement execution of the said agreement. Learned Counsel for the petitioner has relied upon, the judgment Union of India v. Kishori Lal Gupta and Bros. , to contend that, the dispute whether the previous agreement stands superseded or , not by a supplementary agreement falls outside, the arbitration clause, if it is superseded, the arbitration clause fills within it. It is also argued that by virtue of agreement dated 27.4.2000, the permission was granted to the petitioner to lease out the premises in dispute. In terms of the said permission, respondent No. 1 was inducted as lessee. It is argued that respondent No. 2 is not a party to such agreement, therefore, the dispute which is primarily on account of the alleged misuse of the premises by respondent No. 2, cannot be referred to an arbitrator. Still further, the teamed trial Court has relied upon the judgments' of the Hon'ble Supreme Court reported as "Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums 2003(6) S.C.C. 563 and Sukanya Holdings (P) , Ltd. v. Jayeph H. pandya Anr. to contend that the said judgments have, been impliedly overruled by the latest judgment of the Hon'ble Supreme Court reported as State Bank of Patiala v. Patel Engineering 2005(8) S.C.C. 618. Therefore, the order passed by the learned trial Court cannot be sustained.
5. After hearing learned Counsel for the petitioner at some length, I do not find any merit in the present revision petition. A perusal of letter of allotment dated 6.7.1989 shows that the petitioner was allotted a plot measuring 1402.50 square metres. The conveyance deed dated 14.7.1995 is in respect of the said area. While accepting the request of the petitioner to lease 700 square metres of covered area for a period of nine years in favour of respondent No. 2, the Corporation has executed a supplementary agreement. The said supplementary agreement though contains elaborate terms and conditions including the term of prohibition of fragmentation and bifurcation of the plots as well as resumption but the said agreement cannot be read in isolation as it is only in respect of area which was permitted to be leased by the petitioner. The original agreement and conveyance deed are not superseded as such supersession will in fact, amount to taking away the title of the petitioner itself. By virtue of the supplementary agreement, Clauses, if any, contrary to the agreement originally entered upon, can be deemed to be superseded but not the entire agreement so as to infer that the arbitration clause between the parties stands superseded. Therefore, the argument raised by the learned Counsel for the petitioner that supplementary agreement supersedes the original agreement, cannot be accepted. In Kishori Lal's case (supra), a finding was recorded that the substituted agreement gave a new cause of action and obliterated the earlier one. In view of the said fact, it was held that the arbitration clause of the original contract, would not survive. In the present case, it has been found as a matter of fact that the supplementary agreement is only in respect of permission granted to the petitioner to lease out part of the property conveyed to the petitioner and such supplementary agreement does supersede the earlier agreement. Therefore, reliance on the said judgment is of no help to the petitioner.
6. The argument that respondent No. 2 is not a party to the agreement and, therefore, the arbitration agreement cannot be invoked against respondent No. 2 is again misconceived. It is the petitioner, who has sought permission to grant lease in favour of respondent No. 2, which was granted to the petitioner. Consequences of any alleged misuse of the premises leased by the petitioner have to be borne by the petitioner himself. It is the petitioner, who has again filed suit challenging the action of the Corporation. Therefore, the fact that the agreement is not between the Corporation and the lessee of the petitioner, is immaterial as the petitioner alone is allottee under the Corporation and the rights of the said subsequent lessee are not independent to any of the rights of the petitioner.
7. The argument raised by the learned Counsel for the petitioner that the judgments of the Hon'ble Supreme Court in Hindustan Petroleum (supra) and Sukanya Holidays (supra) run counter to the law laid down in Patel Engineernig's case (supra), is not sustainable.
8. In Hindustan Petroleum's case (supra), it has been held that the Judicial Authority is bound to refer the matter to the Arbitrator, once the existence of a valid arbitration clause is established. The Judicial Authority is entitled to, has to and is bound to decide the jurisdictional question made before it before declining to make a reference. In the facts of the present case, it is established that there exists an Arbitration Clause and, thus, the issues raised in the suit, are required to be decided in terms of the said Clause. The issue raised in Sukanya Holdings' case (supra), was not the issue arisen remotely in Patel Engineering's case (supra). In the aforesaid case, the question decided was that if part of the subject matter is part of the arbitration agreement whether still the entire matter can be referred to Arbitrator. In the presence case, the dispute is between the Corporation and the petitioner in respect of misuse of the premises leased at the instance of the petitioner, therefore, the entire matter falls within the scope of Arbitration Clause, contained in the agreement and, therefore, the matter is required to be decided by the Arbitrator alone.
9. The petitioner has raised another argument that neither certified copy nor original agreement was attached when the application Under Section 8 of the Act, was filed. Therefore, the Corporation has not complied with the mandatory provisions of Section 8(2) of the Act. It is submitted that the specific plea was raised by the petitioner in reply to the said application in respect of non filing of the original agreement but the learned I trial Court has not considered such objections in the impugned order. A perusal of the order passed by the learned trial Court on 15.4.2006 shows that no such argument was raised before the learned trial Court that the original agreement has not been filed. Since execution of the agreement as well as supplementary agreement is admitted by the petitioner, the non-filing of such agreement, if any, inconsequential as it is matter of procedure alone. Therefore, I do not find any merit in the said argument.
10. No other point is urged.
11. Thus, I do not find any illegality or irregularity in the order passed by the learned trial Court, which may warrant interference by this Court in exercise of its revisional jurisdiction.
12. Hence, the present petition is dismissed in limine.