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1 - 10 of 26 (0.23 seconds)Section 41 in The Arbitration Act, 1940 [Entire Act]
The Arbitration Act, 1940
Section 39 in The Arbitration Act, 1940 [Entire Act]
Section 37 in The Arbitration Act, 1940 [Entire Act]
The Code of Civil Procedure, 1908
Association Of Officers G.S.F.C., ... vs Gujarat State Fertilizers Company And ... on 10 October, 1985
32. The next question which requires determination is whether this application is barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure. The trial Court took into consideration the fact that prior to the present suit the plaintiff had filed Special Civil Suit No. 258 of 1986 before the Civil Judge (S.D.) at Narol for referring the dispute between the parties with regard to the subject matter of the contract to arbitrator. By order dated 12-6-1987 the arbitrator was appointed and matter was referred to him for decision. The trial Court held that in that suit plaintiff had submitted claims and/or disputes which are exclusively falling within the scope of Clause 30 of the tender agreement. Due to inadvertence and oversight some of the claims have not been incorporated and therefore, the plaintiff has rightly filed this suit. He further held that as the matter is pending before the arbitrator and arbitrator has not declared the award it cannot be said that the plaintiff omitted to claim in respect of some claims or intentionally relinquished any portion of his claim. He relied upon the decision of this Court in the case of Kothari and Associates, Baroda v. State of Gujarat 1984 Arbitration Law Reporter 72 and held that causes of action in both the cases are different. He therefore, held that the suit is not barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure.
H.M. Kamaluddin Ansari And Co. vs Union Of India (Uoi) And Ors. on 12 August, 1983
35. As against this, Mr. Dayani, learned Advocate for the plaintiff, submitted that even though marginal note of Section 41 of the Act mentions that procedure and powers of the Courts, yet only procedural part of the Civil Procedure Code is made applicable and not the substantive part. He further submitted that even if for the time being it is presumed that Order 2 Rule 2 of the Civil Procedure Code is made applicable yet in the present case as the arbitration proceedings in the previous matter are not over the plaintiff is entitled to file amendment application under Order 6 Rule 17 of the Civil Procedure Code for referring the additional disputes to the arbitrator. He relied upon the decision of the Supreme Court in the case of H.M.K. Ansari and Company v. Union of India In that case the Supreme Court considered the scope and ambit of Section 41 of the Arbitration Act and held that Clause (a) of Section 41 of the Arbitration Act makes only the procedural rules of the Civil Procedure Code applicable to the proceedings in the Court under the Arbitration Act. This clause does not authorise the Court to pass order of injunction. This power is conferred by Clause (b) of Section 41 of the Arbitration Act. The source of power, therefore, cannot be traced under Clause (a). The Court further held that if Clause (a) of Section 41 gives wide powers to pass order of injunction Clause (b) of Section 41 would become otiose.
Hakam Singh vs M/S. Gammon (India) Ltd on 8 January, 1971
As against this, Mr. Pandya, learned Government Pleader, relied upon the decision of the Supreme Court in the case of Hakam Singh v. Gammon (India) Limited wherein after considering Section 41 of the Arbitration Act the Court held that the Civil Procedure Code in its entirely applies to the proceedings under the Arbitration Act. The jurisdiction of the Court under the Arbitration Act to entertain a proceeding for final award is accordingly governed by the provisions of Civil Procedure Code. He also submitted that in view of the aforesaid decision, assuming for the time being that only procedural part of the Civil Procedure Code is applicable, yet Order 2 Rule 2 of the Civil Procedure Code is procedural and it mainly provides the form of the suit and what the plaint should contain and the consequences if the plaintiff fails or omits to include any of his claim.
Delhi Development Authority vs Alkaram on 24 February, 1982
36. As against this Mr. Dayani submitted that assuming for the time being that Order 2 Rule 2 of the Civil Procedure Code is procedural Rule under Order 6 Rule 17 of the Civil Procedure Code plaintiff is entitled to file an amendment in the plaint and add to its original claim. He submitted that normally amendment in the plaint would be granted by the Court if the suit is pending before the Court. As the suit is not decided by the arbitrator, the matter is still pending before the Court as the arbitrator would be required to file the award before the Court and thereafter the Court would pass appropriate decree in terms of award. He further submitted that application under Section 20 of the Arbitration Act is to be numbered and registered as a suit. Therefore, till there is a final award by the Court he can file an application under Order 6 Rule 17 of the Civil Procedure Code for amending the plaint. For this contention he relied upon decision of the Delhi High Court in the case of Delhi Development Authority v. Alkarama In that case after award has been made plaintiff made another request for referring some items of dispute to the arbitrator. After considering the decision of the Calcutta High Court the Court held that administration of justice would require that there should not be multiplicity of proceedings and the parties should not be permitted to raise disputes over and over again once the disputes have been settled either by the pronouncement by a Court of competent jurisdiction or by the award by an arbitrator. The Court further held that if the principles of Order 2 Rule 2 are made applicable then the principles governing Order 6 Rule 17 would also be made applicable. The Court considered that during the pendency of the suit the plaintiff has right to apply for amendment of the plaint under Order 6 Rule 17 of the Civil Procedure Code in order to enlarge scope of the suit and if so desired can raise additional pleas praying for larger relief than what he had prayed for originally. The Court finally held in Para 16 as under: