The effect of such clauses where parties agree to settle
and/or decide their disputes, arising out of the terms and conditions of the
contract through a private forum is always an alternative mode/mechanism. Such
dispute redressal system other than the Court, has various facets. The same are
elaborated in Section 89 of CPC. The concept therefore itself is very clear that
the proceedings in the Court, are different that the proceedings initiated and/or
referred before the dispute resolution mechanism and or the forum like
arbitration, mediation, conciliation and lokadalat. The clause with such
mechanism as adopted and in spite of notice, the disputes could not be settled,
and there was a delay, and the contractor wanted an interim order and injunction
from the Court, the alleged forum, as recorded in the clause, in no way
competent to deal with the situation and/or grant such declarative/interim/reliefs.
The option so agreed, in no way debars the parties to initiate and/or to file a civil
suit in the competent court for the reliefs including damages for the work done
by them. There is nothing even pointed out and/or referred in the terms and
conditions and/or in the order that such suit and/or initiation of such proceedings
is barred. The forum so provided, cannot be compared with the power of civil
court jurisdiction to decide and/or grant relief as prayed in such suits. The
“forum” is not the “Court” as contemplated under CPC. The judgment so cited,
in no way dealt with the aspect in question specifically to return the plaint for
presentation before the alleged proper forum as contemplated under Order 7 Rule
10 of CPC. The jurisdiction of Court is not restricted by such clauses.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 449 OF 2013
Shri Pravin Pandurang Patil Vs. Executive Engineer,
Pradhan Mantri Gram Sadak Yojana,
Zilla Parishad Premises, Sangli.
CORAM : ANOOP V. MOHTA, J.
DATE : 19 NOVEMBER, 2013.
Citation; 2014 (1) MH L J 373 Bombay,2014(2) ALLMR 634
Rule made returnable forthwith. Heard finally by consent of the
learned Counsel appearing for the parties.
The Appellant-original Plaintiffs have filed three different Appeals
against Order passed below Exhibit-21 dated 8.3.2013 in similar respective suits
for the same cause of action, between the parties as thereby returned the
respective plaints for presentation before the proper forum by invoking Order 7
Rule 10 of Code of Civil Procedure (CPC).
Pursuant to the orders passed by the High Court in the Appeals, the
learned Judge had framed a preliminary issue i.e. “Whether this Court has
jurisdiction to try and decide the present suit?”
The suits filed by the Appellant-Plaintiff were for a recovery of
payment of work done, declaration and injunction. An application was also filed
for an interim protection/injunction and also for a leave under Section 80 of CPC
in the respective suits. The prayers were also granted in all suits and thereby the
statutory period of notices was waived. The parties proceeded accordingly. The
grant and/or no grant of injunction loses its importance once the leave is granted.
The parties can pray for other reliefs in the same suit. There was no challenge
raised to the grant of leave. That aspect attained the finality. No fresh notice is
required.
The reliance was placed by the learned Judge and the Advocate
appearing for the Respondents to clause 25 of terms and conditions of the
contract which is as under:
20. The Clause 25 of terms and conditions of the contract reads as
under:
25-Dispute Redressal System.
25.1 If any dispute or difference of any kind whatsoever shall
arises in connection with or arising out of this contract or the
execution of Works or maintenance of the Works there under,
whether before its commencement or during the progress of Works
or after the termination, abandonment or breach of the Contract, it
shall, in the first instance, be referred for settlement to the
competent authority, described along with their powers in the
Contract Data, above the rank of the Engineer. The competent
authority shall, within a period of forty-five days after being
requested in writing by the Contractor to do so, convey his decision
to the Contractor. Such decisiion in respect of every matter so
referred shall, subject to review as hereinafter provided, be final
and binding upon the Contractor. In case the Works is already in
progress, the Contractor shall proceed with the execution of the
Works, including maintenance thereof, pending receipt of the
decision of the competent authority as aforesaid, with all due
diligence.
25.2 Either party will have the right of appeal, against the
decision of the competent authority, to the Standing Empowered
committee if the amount appealed against exceeds rupees one lakh.
25.3 The composition of the Empowered Standing Committee
will be:
I
One official member, Chairman of the Standing Empowered
Committee, not below the rank of Additional Secretary to the State
Government;
II
One official member not below the rank of chief engineer
and
III
One non-official member who will be technical expert of
Chief Engineer's level selected by the Contractor from a panel of
three persons given to him by the Employer.
25.4 The Contractor and the Employer will be entitled to present
their case in writing duly supported by documents. If so requested,
the Standing Empowered Committee may allow one opportunity to
the Contractor and the Employer for oral arguments for a specified
period. The Empowered Committee shall give its decision within a
period of ninety days from the date of appeal, failing which the
contractor can approach the appropriate court for the resolution of
the dispute.
25.5 The decision of the Standing Empowered Committee will
be binding on the Employer for payment of claims up to five
percent of the Initial Contractor Price. The Contractor can accept
and receive payment after signing as “in full and final settlement of
all claims”. If he does not accept the decision, he is not barred from
approaching the courts. Similarly, if the Employer does not accept
the decision of the Standing Empowered Committee above the limit
of five percent of the Initial Contract Price, he will be free to
approach the courts applicable under the law”
The learned Judge wrongly read the provisions of Order 7 Rule 10
of the Code of Civil Procedure (CPC), which is reproduced as under:
“Order 7 Rule 10- Return of plaint- (1) Subject to the provisions of
rule 10A, the plaint shall at any stage of the suit be returned to be
presented to the court in which the suit should have been instituted.
Explanation: For the removal of doubts, it is hereby declared that a
court of appeal or revision may direct, after setting aside the decree
passed in a suit, the return of the plaint, under this sub-rule.
(2)
Procedure on returning —On returning a plaint, the Judge
shall endorse thereon the date of its presentation and return, the
name of the party presenting it, and a brief statement of the reasons
for returning it.
The “Court” as mentioned is the basic requirement. The words
“Court” and “jurisdiction” are not specifically defined in CPC. However, the
concepts of “Court” and “jurisdiction” are read and referred in most of the part
of the CPC. It is well settled also. The proper forum as read and referred and
included within the term of Court by the learned Judge, in view of plain reading
of above, itself is wrong. The effect of such clauses where parties agree to settle
and/or decide their disputes, arising out of the terms and conditions of the
contract through a private forum is always an alternative mode/mechanism. Such
dispute redressal system other than the Court, has various facets. The same are
elaborated in Section 89 of CPC. The concept therefore itself is very clear that
the proceedings in the Court, are different that the proceedings initiated and/or
referred before the dispute resolution mechanism and or the forum like
arbitration, mediation, conciliation and lokadalat. The clause with such
mechanism as adopted and in spite of notice, the disputes could not be settled,
and there was a delay, and the contractor wanted an interim order and injunction
from the Court, the alleged forum, as recorded in the clause, in no way
competent to deal with the situation and/or grant such declarative/interim/reliefs.
The option so agreed, in no way debars the parties to initiate and/or to file a civil
suit in the competent court for the reliefs including damages for the work done
by them. There is nothing even pointed out and/or referred in the terms and
conditions and/or in the order that such suit and/or initiation of such proceedings
is barred. The forum so provided, cannot be compared with the power of civil
court jurisdiction to decide and/or grant relief as prayed in such suits. The
“forum” is not the “Court” as contemplated under CPC. The judgment so cited,
in no way dealt with the aspect in question specifically to return the plaint for
presentation before the alleged proper forum as contemplated under Order 7 Rule
10 of CPC. The jurisdiction of Court is not restricted by such clauses. The
jurisdiction of civil court is not restricted by such clauses.
Admittedly, even there is no clause in the contract which provides
and as contemplated under Section 16 to 20 of CPC about specified jurisdiction
of competent court and/or and/ior
like provisions of the Arbitration and
Conciliation Act, 1996. The private terms and conditions so referred above, are
not sufficient to return the plaint by treating the said forum as “the Court having
jurisdiction” as contemplated under CPC.
The learned Judge, in my view, requires to pass the order based
upon the material available and/or merits of the matter. To grant reliefs for want
of proper forum may be issue which required to be considered in accordance
with law. But to return the plaint and thereby decides the rights, by the
competent court in such fashion, is impermissible. It is against the provisions of
law and therefore unsustainable.
Having once granted the leave, as contemplated under Section 80
of CPC, further discussion on the same issue, is also uncalled for, specially when
the learned Judge has not dismissed the suit for want of statutory notice, but
returned the plaint for the presentation before the proper forum by invoking
Order 7 Rule 10 of CPC. The reasons are therefore self-contradictory and the
Resultantly, the above Appeals are allowed. Impugned order dated
order therefore liable to be quashed and set aside.
8.3.2013 passed in above matters (Special Civil Suit Nos.58 of 2012, 54 of 2012
of.
and 62 of 2012) are quashed and set aside. Civil Applications are also disposed
The plaints are restored to its original file. The learned Judge to proceed
with the matter in accordance with law. The suits are expedited, as the contesting
(ANOOP V. MOHTA, J.)
parties are the Union of India and the State Government. No costs.
Print Page
and/or decide their disputes, arising out of the terms and conditions of the
contract through a private forum is always an alternative mode/mechanism. Such
dispute redressal system other than the Court, has various facets. The same are
elaborated in Section 89 of CPC. The concept therefore itself is very clear that
the proceedings in the Court, are different that the proceedings initiated and/or
referred before the dispute resolution mechanism and or the forum like
arbitration, mediation, conciliation and lokadalat. The clause with such
mechanism as adopted and in spite of notice, the disputes could not be settled,
and there was a delay, and the contractor wanted an interim order and injunction
from the Court, the alleged forum, as recorded in the clause, in no way
competent to deal with the situation and/or grant such declarative/interim/reliefs.
The option so agreed, in no way debars the parties to initiate and/or to file a civil
suit in the competent court for the reliefs including damages for the work done
by them. There is nothing even pointed out and/or referred in the terms and
conditions and/or in the order that such suit and/or initiation of such proceedings
is barred. The forum so provided, cannot be compared with the power of civil
court jurisdiction to decide and/or grant relief as prayed in such suits. The
“forum” is not the “Court” as contemplated under CPC. The judgment so cited,
in no way dealt with the aspect in question specifically to return the plaint for
presentation before the alleged proper forum as contemplated under Order 7 Rule
10 of CPC. The jurisdiction of Court is not restricted by such clauses.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 449 OF 2013
Shri Pravin Pandurang Patil Vs. Executive Engineer,
Pradhan Mantri Gram Sadak Yojana,
Zilla Parishad Premises, Sangli.
CORAM : ANOOP V. MOHTA, J.
DATE : 19 NOVEMBER, 2013.
Citation; 2014 (1) MH L J 373 Bombay,2014(2) ALLMR 634
learned Counsel appearing for the parties.
The Appellant-original Plaintiffs have filed three different Appeals
against Order passed below Exhibit-21 dated 8.3.2013 in similar respective suits
for the same cause of action, between the parties as thereby returned the
respective plaints for presentation before the proper forum by invoking Order 7
Rule 10 of Code of Civil Procedure (CPC).
Pursuant to the orders passed by the High Court in the Appeals, the
learned Judge had framed a preliminary issue i.e. “Whether this Court has
jurisdiction to try and decide the present suit?”
The suits filed by the Appellant-Plaintiff were for a recovery of
payment of work done, declaration and injunction. An application was also filed
for an interim protection/injunction and also for a leave under Section 80 of CPC
in the respective suits. The prayers were also granted in all suits and thereby the
statutory period of notices was waived. The parties proceeded accordingly. The
grant and/or no grant of injunction loses its importance once the leave is granted.
The parties can pray for other reliefs in the same suit. There was no challenge
raised to the grant of leave. That aspect attained the finality. No fresh notice is
required.
The reliance was placed by the learned Judge and the Advocate
appearing for the Respondents to clause 25 of terms and conditions of the
contract which is as under:
20. The Clause 25 of terms and conditions of the contract reads as
under:
25-Dispute Redressal System.
25.1 If any dispute or difference of any kind whatsoever shall
arises in connection with or arising out of this contract or the
execution of Works or maintenance of the Works there under,
whether before its commencement or during the progress of Works
or after the termination, abandonment or breach of the Contract, it
shall, in the first instance, be referred for settlement to the
competent authority, described along with their powers in the
Contract Data, above the rank of the Engineer. The competent
authority shall, within a period of forty-five days after being
requested in writing by the Contractor to do so, convey his decision
to the Contractor. Such decisiion in respect of every matter so
referred shall, subject to review as hereinafter provided, be final
and binding upon the Contractor. In case the Works is already in
progress, the Contractor shall proceed with the execution of the
Works, including maintenance thereof, pending receipt of the
decision of the competent authority as aforesaid, with all due
diligence.
25.2 Either party will have the right of appeal, against the
decision of the competent authority, to the Standing Empowered
committee if the amount appealed against exceeds rupees one lakh.
25.3 The composition of the Empowered Standing Committee
will be:
I
One official member, Chairman of the Standing Empowered
Committee, not below the rank of Additional Secretary to the State
Government;
II
One official member not below the rank of chief engineer
and
III
One non-official member who will be technical expert of
Chief Engineer's level selected by the Contractor from a panel of
three persons given to him by the Employer.
25.4 The Contractor and the Employer will be entitled to present
their case in writing duly supported by documents. If so requested,
the Standing Empowered Committee may allow one opportunity to
the Contractor and the Employer for oral arguments for a specified
period. The Empowered Committee shall give its decision within a
period of ninety days from the date of appeal, failing which the
contractor can approach the appropriate court for the resolution of
the dispute.
25.5 The decision of the Standing Empowered Committee will
be binding on the Employer for payment of claims up to five
percent of the Initial Contractor Price. The Contractor can accept
and receive payment after signing as “in full and final settlement of
all claims”. If he does not accept the decision, he is not barred from
approaching the courts. Similarly, if the Employer does not accept
the decision of the Standing Empowered Committee above the limit
of five percent of the Initial Contract Price, he will be free to
approach the courts applicable under the law”
The learned Judge wrongly read the provisions of Order 7 Rule 10
of the Code of Civil Procedure (CPC), which is reproduced as under:
“Order 7 Rule 10- Return of plaint- (1) Subject to the provisions of
rule 10A, the plaint shall at any stage of the suit be returned to be
presented to the court in which the suit should have been instituted.
Explanation: For the removal of doubts, it is hereby declared that a
court of appeal or revision may direct, after setting aside the decree
passed in a suit, the return of the plaint, under this sub-rule.
(2)
Procedure on returning —On returning a plaint, the Judge
shall endorse thereon the date of its presentation and return, the
name of the party presenting it, and a brief statement of the reasons
for returning it.
The “Court” as mentioned is the basic requirement. The words
“Court” and “jurisdiction” are not specifically defined in CPC. However, the
concepts of “Court” and “jurisdiction” are read and referred in most of the part
of the CPC. It is well settled also. The proper forum as read and referred and
included within the term of Court by the learned Judge, in view of plain reading
of above, itself is wrong. The effect of such clauses where parties agree to settle
and/or decide their disputes, arising out of the terms and conditions of the
contract through a private forum is always an alternative mode/mechanism. Such
dispute redressal system other than the Court, has various facets. The same are
elaborated in Section 89 of CPC. The concept therefore itself is very clear that
the proceedings in the Court, are different that the proceedings initiated and/or
referred before the dispute resolution mechanism and or the forum like
arbitration, mediation, conciliation and lokadalat. The clause with such
mechanism as adopted and in spite of notice, the disputes could not be settled,
and there was a delay, and the contractor wanted an interim order and injunction
from the Court, the alleged forum, as recorded in the clause, in no way
competent to deal with the situation and/or grant such declarative/interim/reliefs.
The option so agreed, in no way debars the parties to initiate and/or to file a civil
suit in the competent court for the reliefs including damages for the work done
by them. There is nothing even pointed out and/or referred in the terms and
conditions and/or in the order that such suit and/or initiation of such proceedings
is barred. The forum so provided, cannot be compared with the power of civil
court jurisdiction to decide and/or grant relief as prayed in such suits. The
“forum” is not the “Court” as contemplated under CPC. The judgment so cited,
in no way dealt with the aspect in question specifically to return the plaint for
presentation before the alleged proper forum as contemplated under Order 7 Rule
10 of CPC. The jurisdiction of Court is not restricted by such clauses. The
jurisdiction of civil court is not restricted by such clauses.
Admittedly, even there is no clause in the contract which provides
and as contemplated under Section 16 to 20 of CPC about specified jurisdiction
of competent court and/or and/ior
like provisions of the Arbitration and
Conciliation Act, 1996. The private terms and conditions so referred above, are
not sufficient to return the plaint by treating the said forum as “the Court having
jurisdiction” as contemplated under CPC.
The learned Judge, in my view, requires to pass the order based
upon the material available and/or merits of the matter. To grant reliefs for want
of proper forum may be issue which required to be considered in accordance
with law. But to return the plaint and thereby decides the rights, by the
competent court in such fashion, is impermissible. It is against the provisions of
law and therefore unsustainable.
Having once granted the leave, as contemplated under Section 80
of CPC, further discussion on the same issue, is also uncalled for, specially when
the learned Judge has not dismissed the suit for want of statutory notice, but
returned the plaint for the presentation before the proper forum by invoking
Order 7 Rule 10 of CPC. The reasons are therefore self-contradictory and the
Resultantly, the above Appeals are allowed. Impugned order dated
order therefore liable to be quashed and set aside.
8.3.2013 passed in above matters (Special Civil Suit Nos.58 of 2012, 54 of 2012
of.
and 62 of 2012) are quashed and set aside. Civil Applications are also disposed
The plaints are restored to its original file. The learned Judge to proceed
with the matter in accordance with law. The suits are expedited, as the contesting
(ANOOP V. MOHTA, J.)
parties are the Union of India and the State Government. No costs.
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