1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2214 of 2008 M/s.Anand Construction & ors. .. Appellants versus Shri Kishan H. Dhingra & ors. .. Respondents ... Mr.S.R.Page for the appellant. CORAM : D.G. KARNIK, J DATED : 3rd December 2008 P.C.: 1. By this appeal, the appellant challenges the judgement and order dated 13th October 2008 passed by the Learned Judge of the City Civil Court in Suit no.202 of 2007. 2. By that suit the appellant (original plaintiff) claimed a declaration that the Memorandum of Understanding dated 8th April 1997 executed between him and the respondents, was valid and 2 binding upon the respondents. The respondents appeared and contested the suit. They contended that the Memorandum of Understanding((MOU) contained a term for reference of all disputes arising out of the MOU to the arbitration. They further contended that in pursuance of the term in the MOU, the disputes were referred to the arbitration at the hands of Mr.Ganesh Vishnu Suvarnapatki - the sole arbitrator named in the MOU. In pursuance of the said MOU, the arbitration proceedings were held and the sole arbitrator made his award on 7th February 2006. The respondents therefore contended that the City Civil Court had no jurisdiction to entertain and try the suit. Accordingly, the learned City Civil Judge framed the following preliminary issue: "Whether in view of the provisions of Arbitration and Conciliation Act 1996, this court has jurisdiction to entertain and try the suit." The learned City Civil Judge then recorded a finding that he had no jurisdiction to entertain and try the suit. That decision is impugned in this appeal. 3. The appellant has annexed the copies of plaint and all relevant documents and materials to 3 the appeal memo. Counsel for the apellant submitted that he does not want to rely upon or refer to any other document. Hence, calling for Record and Proceedings is dispensed with. 4. Heard learned counsel for the applicant and perused the annexures to the appeal memo. Copy of the MOU is age page 68. Clause no.17 of the MOU reads thus: 17. Arbitration: The parties realise that once the Agreement for Development is entered into, it would not be in their respective interest to have dispute and/or to resort to litigation for resolving such disputes and therefore agree to refer all doubts, differences or disputes among them relating to the said Plot of land or the terms hereof or the obligations of the parties hereto, to the sole arbitration and final determination of Shri G.V. Suvarnapatki at Sion, Mumbai-22 who will have powers and parties hereto will abide by his decision. Clause 17 makes it explicitly clear that all 4 disputes between the parties arising out of the MOU were required to be referred to the sole arbitrator of Mr.G.V. Suvarnapatki. Accordingly, disputes were referred to Mr.Suvarnapatki by the parties. Mr.Suvarnapatki - the sole arbitrator after hearing the parties published his award on 7th February 2006. The learned City Civil Judge was therefore right in holding that it had no jurisdiction to entertain and try the suit relating to the same subject which had been the subject matter of the arbitration. 5. Learned counsel for the appellant, however, submitted that the learned arbitrator had not followed proper procedure. He had not given proper opportunity to the parties to file claim statement and statement of defence and proceedings before the arbitrator were conducted like a layman without following the proper rules of procedure. 6. If there was any error o procedure in the arbitration proceedings vitiating the award it was open to the appellant to challenge the arbitration award u/s.34 of the Arbitration Act interalia on the ground of the defect of procedure and/or misconduct of arbitration proceedings. That has not been done. Simply a suit is sought to be filed to unihiliate 5 the award by claiming a declaration that the MOU still subsists. This in my view cannot be done. I see no error in the view taken by the City Civil Judge. 7. Appeal is accordingly dismissed summarily. (D.G. KARNIK, J)