1 58 fa.526.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 526 OF 2010 Murlidhar Dattoba Nimankar and others. ... Appellants Versus Maruti Dattoba Nimankar and others. ... Respondents ­­­­­ Mr. A.M.Kumbhakoni, Senior Counsel, i/b Mr.Amit B.Borkar for the Appellants. Mr. Surel S. Shah for Respondent No.1, 8 to 12. Mr. P.M.Arjunwadkar for Respondent Nos.2, 13 and 15. ­­­­­ CORAM : A.S.OKA, J. DATE : 12 th August, 2011. ORAL JUDGMENT: 1 Notice of final disposal was issued by this Court on 11 th July, 2011. Accordingly, the appeal is taken up for final disposal at the admission stage. The impugned decree has been passed in exercise of power under clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908. By the impugned judgment and decree, the plaint filed by the Appellants has been rejected. 2 58 fa.526.11 2 The suit was filed by the Appellants for partition and separate possession of various properties set out in the plaint. The Respondent Nos.1 and 2 made separate applications for rejection of the plaint. The impugned order has been passed on the basis of the separate applications made by the Defendant Nos.1 and 2 for rejection of the plaint. In the application made by the Respondent No.1 – Defendant No.1, it was contended that Mr.Madanlalji Sohanlalji Bohra and Mr.Mahadev Bandu Kodalkar were authorized by the parties to resolve the disputes regarding partition and in fact, an arbitral award has been made by them on 2 nd January, 2007. It was contended in the said application that the remedy of the Appellants was to apply under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the said Act”). Another application was made by the Respondent No.2 raising the same contention. It was also contended that the suit was hit by principle of estoppel. 3 The learned trial Judge held that the Appellant No.1 and his two brothers had given an authority to Mr.Madanlalji Bohra and 3 58 fa.526.11 Mr.Mahadev Kodalkar, who have passed an award and only remedy available for the Appellants was to get the award set aside by taking recourse to Section 34 of the said Act. The trial Court held that as no such application has been filed within the prescribed period of limitation, the award has become final and the suit is not maintainable. 4 The learned counsel appearing for the Appellants submitted that the Respondent Nos.1 and 2 had invoked clause (d) of Rule 11 of Order VII of the said Code. He submitted that there is no finding recorded that on the statements made in the plaint the suit appears to be barred by any law. He submitted that the trial Court has erroneously proceeded to determine the issue of maintainability of the suit while dealing with prayer for rejection of the plaint. He submitted that unless a clear bar under any specific provision of law was pointed out, the Court could not have rejected the plaint. 5 The learned counsel appearing for the contesting Respondents supported the impugned judgment and decree. The 4 58 fa.526.11 learned counsel invited the attention of the Court to the material assertions in the plaint. It was submitted that even going by the averments made in the plaint, the Appellants admitted that the Appellants and Respondent Nos.1 and 2 appointed Mr.Madanlalji Bohra and Mr.Mahadev Kodalkar as Arbitrators and the said Arbitrators have decided the dispute. The learned counsel relied upon Section 5 of the said Act and submitted that as the award is made by the learned Arbitrators, judicial intervention is not permissible. Attention of the Court is invited to Rule 1 of Order VII and in particular, clause (e) thereof in support of the submission that the facts constituting cause of action form part of the plaint and therefore, the documents which have been relied upon in the plaint which constitute the cause of action will have to be looked into while considering the prayer for rejection of the plaint under clause (d) of Rule 11 of Order VII of the said Code. The submission of the learned counsel appearing for the Respondents is that though the impugned judgment may not be happily worded, a bar was attracted justifying the rejection 5 58 fa.526.11 of the plaint under clause (d) of Rule 11 of order VII of the said Code. Reliance was placed on the decision of the Apex Court in the case of T.Arivandandam Vs. T.V. Satyapal and another [1977 (4) Supreme Court Cases 467]. 6 I have carefully considered the submissions. Perusal of the impugned order shows that the learned trial Judge purported to decide the issue of maintainability of the suit as is clear from the first point framed for determination. The scope of clause (d) of Rule 11 of Order VII of the said Code is well defined. The Court can exercise powers of rejection of the plaint provided the suit appears from the statements in the plaint to be barred by any law. For considering the prayer for rejection of the plaint, only the averments made in the plaint can be looked into and not the defence. The perusal of the plaint shows that the suit relates to several properties, which are more particularly described in the schedule. The paragraph No.12 of the plaint shows that only the Appellant No.1 and Respondent Nos.1 and 2 had appointed Mr.Madanlalji Bohra and Mr.Mahadev Kodalkar to 6 58 fa.526.11 resolve the disputes. It is alleged that the said two persons were authorized to bring the dispute to an end. It is stated that the said two persons took the account of the stock of the business and the said stock was placed in possession of the Respondent No.1. Therefore, the averments made in the plaint do not show that all the parties to the suit were parties to the alleged arbitration agreement. In the plaint, it is not stated that there was any reference made to the arbitrations and that an award was made. The averments made in the plaint disclose that only the account was taken by the said two persons. Therefore, there is no specific reference to in the plaint to any arbitration award to which all the parties to the suit were parties. There is no specific bar to the present suit was pointed out. It will be necessary to make a reference to the reasons recorded by the learned trial Judge. The reasoning is recorded in paragraph No.20, which reads thus: “20. Thus, from plain reading of plaint it shows that plaintiff No.1 and his two brothers had given authority to the arbitrators Madanlal Bohra and Mahadev Kodulkar and accordingly they decided the dispute and passed award. Now the plaintiffs have only remedy to get set aside said award u/s.34 of Arbitration Act. As the plaintiffs have not 7 58 fa.526.11 filed any application therefore said award has become final as per section 35 of the Act. As per section 36 of the Act it has become decree of Civil court and can be executed. Hence, without setting aside the Award suit is not maintainable. Therefore, this suit is barred by Law of Arbitration and thus, the plaint is liable to be rejected under Order 7, rule 11(d) of C.P.C. Hence, I answer point No.1 in the affirmative.” 7 Thus, even the trail Court has not recorded any finding that bar under any specific statute has been attracted and all that the trial Court held is that the suit is not maintainable. The plaint cannot be rejected by holding that the suit is not maintainable. Clause (d) of Rule 11 of Order VII of the said Code is attracted when from the averments made in the plaint the suit appears to be barred by law. Thus, it is obvious that clause (d) of Rule 11 of Order VII of the said Code was not at all applicable as there is no express bar pointed out. Only on this ground, the impugned judgment and decree will have to be set aside. However, it will have to clarified that this Court has considered only the merits of the prayer made under clause (d) of Rule 11 of Order VII of the said Code and no other issue including the issues of maintainability and estoppel have been decided by this Court and all 8 58 fa.526.11 those issues will have to be kept open to be decided by the trial Court at appropriate stage. 8 Hence, I pass the following order: i. The impugned judgment and decree dated 2 nd March, 2010 is quashed and set aside ; ii. The Special Civil Suit No.47 of 2009 is restored to the file of the trial Court ; iii. The Applications at Exhibit 57­D and 58­D made by the Respondent Nos.1 and 2 stand dismissed; iv. It is, however, made clear that the issue of maintainability of the suit is kept open. It is also made clear that as a result of setting aside of the impugned judgment and decree, the application made by the Respondent Nos.8 to 12 at Exhibit – 34 – D shall be treated as pending only insofar as prayer for framing preliminary issue is concerned ; v. The appeal is partly allowed on above terms with 9 58 fa.526.11 no order as to costs ; vi. Civil Application No.1179 of 2010 does not survive and the same is disposed of ; and vii. The hearing of the appeal is expedited. [ A.S.OKA, J ]