Bharat Sanchar Nigam Limited v. M.N.Chellappan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934** ## **OP(C).No. 2763 of 2011 (O)** ## **-------------------------O.S. NO.62/2007 of SUB COURT, NEDUMANGAD -------------------------------------** **PETITIONER(S)/PETITIONERS: -----------------------------------------** **1. BHARAT SANCHAR NIGAM LIMITED, REPRESENTED BY CHIEF GENERAL MANAGER TELECOM, KERALA CIRCLE, THIRUVANANTHAPURAM.** **2. ASSISTANT GENERAL MANAGER (M.M.), BHARAT SANCHAR NIGAM LIMITED, O/O THE PRINCIPAL GENERAL MANAGER, TELECOM DISTRICT,THIRUVANANTHAPURAM.** ## **BY ADV. SRI.MATHEWS K.PHILIP,S.C.** ## **RESPONDENT(S):** **------------------------** **M.N.CHELLAPPAN, S/O. M.NANU, CHAITHANYA,MANGALAM LANE,PURUTHIPARA, NALANCHIRA P.O.,THIRUVANANTHAPURAM-15.** ## **BY ADV. SRI.G.SUDHEER** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **OP(C).No. 2763 of 2011 (O)** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **EXT.P1 : COPY OF THE PLAINT IN OS NO.62/07 OF SUB COURT NEDUMANGAD.** **EXT.P2 : COPY OF THE WRITTEN STATEMENT IN OS NO.62/07 OF SUB COURT NEDUMANGAD.** **EXT.P3 : COPY OF THE AGREEMENT DATED 4/4/2000.** **EXT.P4 : COPY OF THE AFFIDAVIT FILED BEFORE THE SUB COURT NEDUMANGAD. EXT.P5 : COPY OF THE ORDER DATED 03.06.2011.** ## **RESPONDENT(S) EXHIBITS : NIL** **/ TRUE COPY /** **NS** **P.A. TO JUDGE** ## **THOMAS P. JOSEPH, J.** **---------------------------------------Original Petition (civil) No. 2763 of 2011 ----------------------------------------------------Dated this the 31[th] day of January, 2013** ## **J U D G M E N T** Exhibit P5, order dated 03-06-2011 in O.S.No.62 of 2007 of the Sub Court, Nedumandgad is under challenge. 2. Petitioners/defendants took the building belonging to the respondent on rent as per Exhibit P3, agreement registered as document No.848 of 2000 of SRO, Kallara. Respondent filed O.S.No.62 of 2007 for recovery of damages alleging that petitioners caused damage to the building. Petitioners filed Exhibit P2, written statement where, in paragraph 3, they contended that the suit is not maintainable since Exhibit P3, agreement provides for arbitration of the dispute involved. Petitioners claimed that the initial agreement was executed on 23.08.1999, renewed on 25.11.1999 and on 04.04.2000, all of which contained a Clause for arbitration. 3. Learned Sub Judge framed a preliminary issue whether the suit is barred by provisions of the Arbitration and Conciliation Act, 1996 (for short 'the Act'). Learned Sub Judge held that the original agreement is not produced by the petitioners, copy of agreement produced by the Original Petition (civil) No. 2763 of 2011 2 respondent/plaintiff is not admissible and that petitioner did not comply with the certain directions issued by the learned Sub Judge to state who exactly is the arbitrator appointed in accordance with Exhibit P3, agreement and refused to refer the dispute for arbitration. The suit was found to be maintainable. That finding is under challenged. 4. Learned counsel submits that though the original agreement was not produced by the petitioners, copy of agreement produced by the respondent/plaintiff would serve the purpose. It is submitted that in answer to the direction issued by the learned Sub Judge, petitioners filed Exhibit P4, affidavit explaining the procedure for arbitration which was not taken into account by the learned Sub Judge. 5. Learned counsel for the respondent while supporting the finding entered by the learned Sub Judge contends that the direction for submission of details as to the arbitrator was issued on 26-06-2009 but, Exhibit P4 affidavit was filed only on 27-102009. It is contended that there is no reason to interfere with the finding of the trial court. Original Petition (civil) No. 2763 of 2011 3 6. It is not disputed Exhibit P3 is a registered agreement. Clause 17 of Exhibit P3, agreement states that if at any time there shall arise any dispute, doubt, difference or question with regard to its interpretation or in respect of rights, duties and liabilities of the parties thereto or in any way touching or arising out of the agreement or otherwise in relation to the premises, such dispute, difference, doubt or question shall be referred to the sole arbitration of the member services, Department of Telecommunication, Government of India. 7. Thus there is a provision for arbitration of the dispute as per the agreement between the parties. Here, claim is for damages for allegedly causing damage to the building of the respondent. That is a dispute touching or arising out of Exhibit P3, lease agreement. Therefore, the dispute involved in this case is one referable to the arbitrator as per Clause 17 of Exhibit P3. 8. True that petitioners have not produced original of Exhibit P3 along with the written statement. Respondent has produced a copy of the agreement along with the plaintiff, the execution of which is admitted by both parties. Hence copy of Original Petition (civil) No. 2763 of 2011 4 agreement produced by the respondent is sufficient for the purpose. (See **Bharat Sewa Samsthan v. U. P. Electronics Corporation Ltd. - [(2007) 7** SCC **737]** . 9. Next question is whether learned Sub Judge is right in refusing arbitration for the reason that an earlier direction was not complied. On 26-06-2009 learned Sub Judge issued direction to the petitioners to furnish details of the arbitrator (to whom the dispute is to be referred). Learned Sub Judge observes in the impugned order that affidavit of the 2[nd] petitioner would show that petitioners are not able to furnish name and particulars of the arbitrator and that there is no certainty as to the arbitrator to whom the dispute can be referred. In Exhibit P4, affidavit though filed on 27-10-2009, it is stated that procedure for appointment of arbitrator commences on receipt of an application from the respondent and on receipt of such application the Chief General Manager will prepare a panel and will submit the same to the corporate office at Delhi. It is the corporates office which names the person who is to act as an arbitrator. Such an event has not occurred since the respondent Original Petition (civil) No. 2763 of 2011 5 has not preferred any application. Hence petitioners were not able to furnish the name and address of the arbitrator. 10. The above being the procedure, petitioners cannot be found fault with for not furnishing details of the arbitrator. In view of Section 8 of the Act, once it is shown that the agreement between the parties provides for arbitration of the dispute involved and there is a request for arbitration the judicial authority before which action is brought is bound to refer the parties to the arbitration. Various decisions on the point say that once a request is made for arbitration, there is a suspension of jurisdiction of the judicial authority until question of arbitration is decided by such authority. 11. In the light of the above, Exhibit P5, order cannot be sustained. Parties are to be referred to arbitration in accordance with Clause 17 of Exhibit P3. 12. In the light of averments in paragraphs 4 and 5 of Exhibit P4 affidavit, it is open to the respondent/plaintiff to request the Chief General Manager to appoint an arbitrator. If any such request is received, the Chief General Manager shall Original Petition (civil) No. 2763 of 2011 6 appoint an arbitrator in the manner provided and intimate the same to the respondent/plaintiff. 13. So far as refund of court fee already paid by the respondent in the court below is concerned, consequence of this judgment is that parties are referred to arbitration which means that no suit was brought before learned Sub Judge. Therefore, it is open to the respondent to request the learned Sub Judge for refund of the court fee paid and if any such request is made, the learned Sub Judge shall, after hearing the parties and the learned Government Pleader pass appropriate orders on that request. The original petition is allowed as under: 1. Exhibit P5, order dated 03-06-2011 in O.S.No.62 of 2007 of the Sub Court, Nedumangad is set aside. 2. The parties to that suit will stand referred to arbitration in accordance with Clause 17 of Exhibit P3 agreement. 3. It is also open to the respondent/plaintiff to request the Chief General Manager of the BSNL Ltd. to appoint an Original Petition (civil) No. 2763 of 2011 7 arbitrator in terms of Exhibit P3, agreement and or stated in Exhibit P4, affidavit. 4. On receipt of such request, the Chief General Manager shall appoint an arbitrator as provided under the law and as per agreement between the parties and give intimation to the respondent of such appointment. **THOMAS P. JOSEPH, JUDGE.** DSV/-