1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1104 OF 2010 (Power Grid Corporation of India Ltd. & Anr. vs. M/s. Lucky Petroleum & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JUNE 15, 2010. This Court has issued notice for final disposal and stayed further proceedings in Special Civil Suit No. 73 of 2009. I have heard Shri Mehadia, learned counsel for the petitioners and Shri Thakur, learned counsel for the respondents. Shri Mehadia, learned counsel has invited attention to various documents to show how the terms and conditions of agreement between the petitioners and Metal Scrap Trading Corporation Limited (MSTC) are binding on Respondents No. 1 & 2 also. He has further invited attention to suit as filed to urge that the suit seeks relief against the defendants (present petitioners) and there is no personal relief sought from defendant No. 2. According to him, in this situation, the application of mind by the trial Court that terms and conditions are not applicable inter se between the plaintiffs and defendants is unsustainable. He invites attention to consideration of this aspect in para 11 of the 2 impugned order. Shri Thakur, learned counsel on the other hand invites attention to certain specific allegations in the plaint to urge that those allegations show the acts of defendant No. 2 in his personal capacity and on the basis of those acts, a claim for general damages is also made in the suit. His effort is to ague that the suit, therefore, is for certain reliefs which are apparently not covered by the arbitration. He also points out that the knowledge of terms and conditions of agreement between the petitioners and MSTC is not pleaded anywhere in application at Exh. 15 filed under Section 8 before the trial Court. His argument is, application is vague and the plea that the buyers specific terms in agreement with MSTC shall extend to present respondents, is not raised at all. In these circumstances, his contention is, the application of mind by the trial Court cannot be faulted with. In order to show that Section 8 of Arbitration and Conciliation Act, 1996, is applicable, it is necessary for the petitioners to point out how the arbitration clause in the agreement between the petitioners and MSTC could be extended to the respondents. The petitioners are relying upon the delivery order dated 08.12.2008 to show that as per terms and conditions therein, the same is governed by general terms as also by special terms applicable for MSTC tenders. The said document is not pleaded in application under Section 8 and has not been 3 placed before the trial Court to show the existence of agreement of arbitration between the plaintiffs and defendants. The trial Court has not considered said document accordingly. The observations of trial Court prima facie show that it found that agreement between the petitioners and MSTC is not a tripartite agreement. Similarly, the contentions of Shri Thakur, learned counsel that in suit reliefs prima facie, not falling within the scope of arbitration agreement, are not evaluated by the trial Court. In this situation, I find that interest of justice can be met with by permitting the petitioner to file fresh application under Section 8 of the Act before the trial Court. The earlier application was filed simultaneously along with the written statement and hence the present application shall also be considered in the same manner by the trial Court. The trial Court shall also evaluate the relevant contentions being raised by the respondents about the nature of reliefs claimed in the suit and whether those reliefs are covered by the arbitration agreement allegedly in existence between the parties. The order impugned before this Court, passed below Exh. 15, is quashed and set aside for the said purpose. Writ Petition is disposed of. Rule accordingly. No order as to costs. JUDGE *GS.