C.R.P.(NPD) No.

45 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.01.2022

CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR

C.R.P. (PD) No.45 of 2019

and C.M.P. No.453 of 2019

1. K.Samad
2. S.Mehrunissa Samad .. Petitioners

Vs.

The Branch Manager,

Reliance Capital,
Reliance Towers, Haddows Road,
Nungampakkam, Chennai – 600 034. .. Respondent

Civil Revision Petition is filed under Section 115 of Civil Procedure Code,

to set aside the order passed in I.A. No.13412 of 2018 in O.S. No.4307 of 2015

on the file of the I Assistant City Civil Court, Chennai, by allowing the above

revision petition.

For Petitioners : Ms. P.Uma

For Respondent : Mr. S.P.Manobharath

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 C.R.P.(NPD) No.45 of 2019

ORDER

This Civil Revision Petition is filed against the order passed by the I

Assistant City Civil Court, Chennai, in I.A. No.13412 of 2018 in O.S. No.4307

of 2015.

2. The revision petitioners as plaintiffs filed a suit in O.S. No.4307 of 2015

before the I Assistant City Civil Court, Chennai. The suit is for mandatory

injunction and to direct the defendant to bring the statements in relation to a

particular loan transaction and to direct the defendant to declare the loan

account as nil balance and for other consequential relief. The respondent in the

Civil Revision Petition filed a petition under Section 8 of Arbitration and

Conciliation Act, 1996, in I.A. No.13412 of 2018 in O.S. No.4307 of 2015 to

refer the parties to arbitration proceedings and to dismiss the suit. The lower

Court allowed the application and dismissed the suit since application filed

under Section 8 of Arbitration and Conciliation Act, is allowed. Aggrieved by

the order allowing the application in I.A. No.13412 of 2018, the above Civil

Revision Petition is preferred.

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 C.R.P.(NPD) No.45 of 2019

3. While allowing the application, the lower Court referred to the terms of

the agreement entered into between the parties which are binding. With regard

to the clause relating to settlement of dispute by arbitration, there is no dispute

and therefore, the trial Court held that the suit is not maintainable. As per the

arbitration agreement any dispute arising under the agreement shall be resolved

by arbitration. Therefore, the suit is barred under Section 8 of the Arbitration

and Conciliation Act. The only course available to the plaintiffs is to make the

claim before the Arbitrator as per the agreement. Though the petitioners

challenged the order on various grounds, the learned counsel for the petitioners

is unable to satisfy the Court as to the merits of the Civil Revision Petition.

Though several grounds were raised by describing the loan agreement as void, it

is seen that none of the points raised in the Civil Revision Petition were raised

before the lower Court. Learned counsel for the petitioners is unable to produce

sufficient materials or cite the authorities to sustain her plea to set aside the

order passed by the lower Court.

4. Learned counsel for the respondent states that an award has been passed

by the Arbitrator in relation to the dispute and therefore, the prayer in this Civil

Revision Petition as become infructuous. From the order of the lower Court, it is

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 C.R.P.(NPD) No.45 of 2019

not seen that the Court has referred the dispute to the Arbitrator. The lower

Court has only stated that it is open to the plaintiffs to seek appointment of

Arbitrator. Learned counsel for the revision petitioners stated that without

issuing notice to the revision petitioner, an Arbitrator, if passes an award, the

same will not bind the petitioner. She further requested this court to give liberty

to her to challenge the arbitration award under Section 34 of the Arbitration and

Conciliation Act, 1996.

5. The Civil Revision Petition is pending for more than two years. Though

the Civil Revision Petition is devoid of any merits, this Court is of the view that

the petitioners should be given an opportunity to challenge the award under

Section 34 of the Arbitration and Conciliation Act, 1996. Though it is stated that

the arbitral award was passed without issuing notice to the revision petitioners,

the petitioners cannot ignore the award. The only right available to the

petitioners is to challenge the arbitral award by filing an application under

Section 34 of the Arbitration and Conciliation Act, 1996. However, this Court is

inclined to observe that the period during which the above Civil Revision

Petition is prosecuted before this Court by the petitioner can be excluded by an

order of Court even though Civil Procedure Code is not strictly applicable to

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 C.R.P.(NPD) No.45 of 2019

arbitral proceedings.

6. Accordingly, this Civil Revision Petition is dismissed as devoid of any

merits. No costs. Consequently, connected miscellaneous petition is closed.

However, it open to the petitioners to challenge the award of Arbitrator before

Court by filing an application under Section 34 of the Arbitration and

Conciliation Act. The period during which the petitioners were prosecuting the

above Civil Revision Petition shall be excluded. However, it is for the

petitioners to prove their case that no notice was served on the them by the

Arbitrator before passing the final award.

11.01.2022
Speaking order / Non-speaking order
Index: Yes / No
bkn

To

The I Additional Judge, City Civil Court, Chennai.

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 C.R.P.(NPD) No.45 of 2019

S.S.SUNDAR, J.,

bkn

C.R.P. (NPD) No.45 of 2019

11.01.2022

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