IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 CRP.No. 1793 of 2003() ---------------------- OS.172/2002 of PRINCIPAL SUB COURT, N. PARAVUR .................... REVN. PETITIONER(S): DEFENDANTS IN THE SUIT: -------------------------------------------- 1. M/S. PARAMOUNT LIMITED (FORMERLY), PARAMOUNT POLLUTION CONTROL LIMITED, PARAMOUNT COMPLEX, GOTRI ROAD, RACE COURSE,BARODA-390 007. 2. MR.D.A.SHAH, GENERAL MANAGER, MATERIALS, PARAMOUNT LIMITED, BARODA-390 007. 3. K.G.MISTRY, SITE IN-CHARGE OF PARAMOUNT LIMITED, C/O. JANARDHANAN PILLAI, SREE RANGAM, TOG ROAD, NORTH KALAMASSERY (NOW RESIDING AT F.1 TNHB APPARTMENTS, MANALI MUTHUR ROAD, MMDA,CHENNAI-68). BY ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR SRI.K.P.UNNIKRISHNAN RESPONDENT(S): PLAINTIFF: ------------------------- A.P.CHERIYAN, S/O. PAILY, ENGINEERING CONTRACTOR, ANJULLIL KEELIYATTU HOUSE, BRAHMAPURAM, PUTHENCRUZ VILLAGE. ADV. SRI.MATHEWS K.PHILIP FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 19/08/2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - C.R.P.No. 1793 of 2003 - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2009 O R D E R This revision petition is filed by defendants 1 to 3 in O.S.No.172 of 2002 on the file of the Principal Sub Court, North Parur. The respondent herein is the plaintiff in that suit. 2. The facts of the case are briefly as follows. The plaintiff is a contractor. The first defendant is a Company, having its head office at Baroda. The first defendant undertook a work of the plant at F.A.C.T. Udyogamandal. Out of it, the defendant entrusted the civil and structural work to the plaintiff on a sub contract basis by work order No. P/MT/10/PRJ/539/CIVIL/4605 dt.3.12.2001. As per the work order, the defendant has to release 90% of the amount of work done as per the actual measurements and 10% is to be deducted as security C.R.P.No. 1793 of 2003 2 deposit. The plaintiff completed the work as per the specifications and directions of the defendant. Eventhough the plaintiff submitted the bill, the defendant disbursed only Rs.5,00,000/- and refused to pay Rs.3,44,824.55. Hence the plaintiff filed the suit for recovery of Rs. 4 Lakhs, which includes the other expenses incurred by him as the payment made for hired machinery. 3. The defendant entered appearance and filed a preliminary objection contending that there is an arbitration clause in the agreement. Hence the suit is not maintainable. According to him, it is agreed between the parties that all the disputes arising out of or in any way connected to that agreement shall be deemed to have arisen at Baroda and the courts at Baroda shall only have jurisdiction to entertain the same. According to him, in the light of the above, the suit is not maintainable and the court has no territorial jurisdiction to try the suit. C.R.P.No. 1793 of 2003 3 4. In the suit, the following preliminary issues were framed. (1) Whether the court has jurisdiction to try the suit? and (2) Whether the suit is maintainable? 5. For the purpose of considering these issues, Exts.A1 and B1 were marked. The learned Sub Judge, on considering the matter, arrived at a conclusion that that court has jurisdiction to entertain the suit and that the suit is maintainable. Against that finding, defendants 1 to 3 filed this revision petition. 6. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 7. The learned counsel for the respondent submitted that Ext.A1 is the copy of the agreement executed between the plaintiff and the first defendant, which is having only 8 pages and that agreement does not contain any arbitration clause. Whereas, the learned counsel for the revision petitioners submitted that Ext.B1 is the original agreement, which contains C.R.P.No. 1793 of 2003 4 arbitration clause at page 15 and also containing a clause to the effect that all disputes arising out of or in any way connected with the agreement, the Courts at Vadodara have jurisdiction to determine the same. The learned counsel for the respondent/plaintiff pointed out that the plaintiff has not signed the agreement from pages 7 onwards and the arbitration clause in Ext.B1 is not binding on the plaintiff. 8. The learned counsel for the petitioners, relying on the decision report in Banarsi Das v. Cane Commissioner, Uttar Pradesh & anr. (AIR 1963 SC 1417), argued that non-signing of the pages from 7 onwards is only an omission not material and is not sufficient to render the agreement invalid. In that case, there was a prescribed form for the agreement under Section 18(2) of the U.P. Sugar Factories Control Act, 1938 and it was held that absence of signature of complaining party and omission to fill the schedule are not material as the agreement was accepted and acted upon by both the sides. That ruling is C.R.P.No. 1793 of 2003 5 not applicable to the facts of the present case, as there is no prescribed form and that the parties have not signed the material pages containing the arbitration clause. 9. The conditions which are required to be satisfied under sub sections (1) and (2) of Section 8 of the Arbitration Act and Conciliation Act, 1996 before the Court can exercise its power are: (1) There is an arbitration agreement. (2) The party to the agreement brings an action in the court against the other party. (3) The subject matter of the action is the same as the subject matter of the arbitration agreement. (4) The other party moves the court for referring the parties to arbitration before it submits its first statement on the substance of the dispute. 10. In the present case, as there is no arbitration clause and clause excluding the jurisdiction of the Sub Court, N.Parur, the C.R.P.No. 1793 of 2003 6 learned Sub Judge is fully justified in finding that the suit is maintainable and that the court has jurisdiction to entertain the suit. Therefore, this revision petition is liable to be dismissed, as it is without any merit. 11. This revision petition is accordingly dismissed. There is no order as to cost. (M.L. JOSEPH FRANCIS) Judge tm