437 1 1 CR No329 of 2008 1 1 5 1N THE HIGII COURT OF PUNJAB AND HARVANA AT CHAND1GARH CR No3329 of 2008 Date ofdccision 22 A010 1 RajeshSharma r Pctitioncre 0 0 versus I C5 I India Infoline Securities Pvt Ltd Etc c0 othcrs Z RcspondcntSe 2 Present Nlr RSTzcoria Advocate for thc petioner I Mr Kasturi Lal Advocatc for respondcl 08 r CReNo5ll of 2008 W2 C Ankush Aggarwal Pctitionee versus India Infolinc Securities Pvt td Etc Si othcrs Respondene Present Ms Meenakshi Poswal Advocatc for Mr ReS Mamli Advocate for the petitioncre Mr Kasturi Lal Advocate for respondent ICCPUR1 J Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 4 38 CR N03329 of 2008 2 S Althoughtwo CivU Revisions N03329 of 2008 tied as RajeshSharma versus lndia Infoline Sccurities Pvt Ltde Etce O others and Civil Rcvision No51 1 of 2008 titled as Ankush Aggarwal versus India lnfoline Securities Pvt Ltd ctc others have been filcd howevcr thc samc questionof law and facts are involvcd in both L thesercvisions pctitionand as such have been decided by thc common 0 order C I The prescnt rcviSion pctition has been dirccted by the 9 petitionerfor settino aside the impugnedorder datcd 92008 vide I which applicationmoved by the petitionerunder Section 80f the Z Arbitration and Conciliation Act 1996 stood allowed e r lt has bcen allegedby the applicantthat an agrecmentwas I inked betwcen the plaintiff and defendants on 20802007 with an 08 QO arbitration clausc 1t was agreedthat any disputebetwcen parties W2 would bc settlcd by arbitrator Now through this applicationit lS Z prayedthat thc suit of thc plaintiffbc dismissed and he bc directed to 0m approachthe arbitrator first In rcply thc instant applicationis rcsistcd on thc ground that a fraud has becn eommiltcd with thc plaintifTby the defendant company The fact regardingdctailcd arbitration clausc has been negated It has been further avcrred that the matter in disputecan be resolved by Civil Court only and not by arbitrator The applicantsare relyingofvagueand inapplicablc clause of arbitration After hcaringthe Iearned counsel for the parties the trial Court allowcd thc appIicationand dismissed thc suit of thc plaintiH Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 4T 4 39 c3 CeR N03329 of 2008 3 HoweverIibertyto approachthc arbitrator as pcr their agrecment was grantede dissiitisfied with the abovc said order the has filcd theinstanl revision pctitione I havc hcard Icarned counscl for thc partiesand have C gonc throughthc records of the casc with their help 0 C Lcarned counscl for thc pctitionerhas submitted that I C0 matter can be referrcd to the Arbitrator only in casc the following I conditions are fulfillcd Z ll that the agreementshould bc in writing 9 Lr 21 the party should have agreed to refcr any dispute presentor futurelto thcm to thc dccision of a private 08 e 71 4 1s Tribunal Il 3 31 The private Tribunal shouid be empoweredto 3 Z adjudicatc upon the disputcsIn an impartialmanncr m givingdue opportunityto the partiesto put forth their casc before lte 41The parties should have agreedthat thc decision of the Private lribunal in rcspcctof thc disputcswill be binding on theme It is contended that all the four contcntions cnvisagedIn authority 4IgdishCh Ise RumeOrs 2007ReCR Civill 860 arc not fulfilled in the prcsent caSCe So in these circumstanccs the Iearncd trial Court has wronglyheld that civil suit is not maintainable and matter is rcferablc to thc Arbitrator lt is Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 4 40 1 CR No3329 of 2008 4 1 1 contended that l ll arbitrationagreement between the partiesthere is clause21 which is rcproduced as under l U21eDispute Rcsolution Anyciaim disputeor diffcrcncc arisingbetween the t Parties hcreto I ll rcspectof th is Agrecmentor any CC contractsdealingsor transactions pursuanthercto or 0 C any rights obligationSterms or conditions as I 0 containcd in this Agreementor thc intcrpretation or I construction of this Agrecmentshall be subjcctto thc Z redrcssal procedureof the Exchangcand r shall bc subjectto the gricvanccrcdrcssal proccdure I of the Exchange and shall bc subject to the 08 arbitration procedurcasprescribcdby thc Exchange Provisionse 99 m Z It is contended that from the pcrusalof thc said clause it ll lS not clear who shall be arbitrator So in thcsc circumstances above said vague clausc of agrccmentcannot prcvaiIupon to debar the to pursuc the remcdybefore the Civil Court Learncd counsel for the petitionerhas fu rthcr submittcd that thcre are alIegations of fraud madc by the petitioncrand the same cannot bc adjudicatcdby the arbitrator and to fortify his argumcnts Iearned counscl for thc petitioncrhas rclied upon authority L Radhakrishnuns Maestro Enineernd Ols 241 ArblR 21OLSQ It is further contended that in casc of vaguc clausc of arbitration without pointingout thc name of arbitrator or authority Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 441 1 1 CRe N03329 of 2008 5 40 to appointboth appointmcnt and rcferencc havc to bc with the consent of both thc parties A unilateral appointmentof the arbitrator by one partywithout conscnt of other will be unauthorized and illegal and the award givenby such arbitrator will be nullitybeing 1 voidab4nitkland cannot bc cnforccd by Courts dcspitethc objections r 0 under Articlc 30 of the partybeingtime barrcd by virtue of Article 119 C of the Limitation Act To supportthis contcntion Iearned counsel for I C5 the pctitioncr has relied upon authorityDhuroma Prathishthunam v3 I Madhok Construction Pvt Ltd 2004 41 RCR Ch 769 Z In rcply to the abovc notcd submissions the learned counsel C for thc respondcnthas submitted that clausc 21 of the agreement envisaged that any disputcarisingout of the contract shall be rcad in 08 accordance with the proccdureof of exchangcand shall bc subjectto arbitration proccdurc as prcscribedby existingprovisions Thc 7 Z respondenthas placedon the rccord Anncxurc R5 and Annexure R 0m which givesthe dctails who shall be the arbitrator and the proccdure how the arbitrator shall dccide the case so there IS no ambiguityIn the terms of the Contract it is settlcd Iaw that when thc party has agreed to reIress thcir grievancc by an arbitrato in these circumstances thc Court preferredthat thc mattcr be decided by thc arbitrator as per clausc ofthe agrecmcnt To strcngthcnthis contcntion Iearned counsel for the pctitioncrreferred MAi GeM1l vs Mls Sri Lakshmi Kns 4 WovensS On 2007 l1 RCR ivill 851 lt is further contcnded that Gauhati High Ctlurt in authorityNichlas PiramulIi Ltd vs Zenith Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 442 1 CR No3329 tIf 2008 6 1 Drus and Allied Aencies Pvtltd AIR 2007 NOC 1897 GAUJ hcld that the questionas to whcther arbit ration agrecmentis attracted to the facts of the givcncase or not cannot be decidcd by the Civil Court but bythe arbitrator himsclf 1 1 have considcred thc said submissions and havc gone 0 throughthe rccords of thc case C In authontyJlw11 Ier casupral relied upon by I C5 the learncd cou nsel for thc petitionerIn order to attract the valid I arbitration agrccmcntthe four conditions mentioncd above should be Z fulfllled The Iearned counsel for the petitioncrhas submittcd that the said four conditions are not fulfilled in the presentcase but that I argumcntis devoid ofanylegalforce 08 All the four conditions mentioned abovc arc complctein the CQ 7 Presentcasc 7Ihe agrccmcnt lS In writing The particshave agrcedto Z refer any disputcprcscnt or futurc bctwecn thcm to thc dccision of the m privateTribunal The privatcTribunal was empowercdto adjudicate disputeinan impartialmanner givingopportunityto the particsto put their casc bcfore it Thc partieshavc agreedto abide by the decision of the privateTribunal So the authorityJordi Chonders case ipral does not help thc casc of thc petitionerin any manncr Mere alleging that fraud has been committed does not oust thc jurisdiction of the arbitrator to adjudicatethe dispute lt is nol disputedthat chequehas been issued by the plaintiff So thc fact that fraud is there cannotbe acceptedOll the face of it In thcsc eircumstanccs authoritv A5 Radhakrirhnm7s ccsupral relied upon bv thc Icarned counscl for Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 443 1 CR No3329 of 2008 7 1 1 thepctitioncralso does not hclpthe casc of the petitioner Sofar as the rcliance of pctitioncron authority ar Prathishthunams case supralis concerncd that authorityalso docs not advance the case of thc lt can not be said that there are vagucclause of arbitration The dctailed procedureis thcre as r 0 mentionedin Annexure R5 and R ln clause 21 it has bcen C mentioned that proccdurelIS by cxisted provisionsshail Z C5 prevailSoit IS a complcte procedurchow arbitrator is appointedand I who shall be arbilrator Thc said proccdurchas bcen clearly Iaid Z down in Chapter Xl of the ByllIwsand Chapter 50f Vuturcs 8L C OptionsTrading Rcgulationof National Stock Exchangeof India I Limited So it cannot be said that arbit rator can not be appointedor a5 that consent has nrIt been tIbtliined These matters arc regulatcdby the above said by Iaws 7 Z The Honble ApexCourt in authorityMLs Agri Gold Exims tl Ltdes casesupral has heid that whcre thcre is a valid arbitration clause ln that casc disputesh0uld be rcferred to the arbitratora lt has been further laid down in the said ruling that a party filingcivil suit when cropped u the Cou rt rightly referrcd thc disputeto the Arbitratore Sothelearned trial Courthas rightlyheld that there is a valid arbitration clause belwcen thc parfiesand as such the suit has been rightly dismissed with the obscrvations that the particscan get their disputessettIcd bcfore the Arbitrator ConsequcntIy there is no m erit i n both the revision petitionsand the same stand dismissed Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 444 n1 e50 4 CR No329 of 2008 8 l n R A copy of this judgmcntbc scnt to thc trial Court for strict compliance JDGE April 22 2010 SV 1 1 0 0 I C5 I Z 1 2 0 I a5 m2 Z m Rashmi 2013.01.15 15: 42 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document