Whether court can return plaint on ground of availability of alternative dispute redressal mechanism?

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.
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.

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Whether award debtor should obtain stay to execution of award if arbitration proceeding commenced prior to coming in to force of Amendment Act 2015?

In State of Bombay (in both the appeals) v. 1. Supreme General Films Exchange Ltd. and 2. Arati Cotton Mills Ltd. reported in MANU/SC/0007/1960 : AIR 1960 SC 980 cited by Mr. Mitra. Mr. Justice Das pronouncing the judgment of the Supreme Court pronounced the dictum that interference with the right of appeal by inserting a new condition or a more onerous condition was not a matter of procedure only. It impaired or interfered with a substantive right. Such an enactment could not be retrospective unless expressly stated to be so.

23. In the case of Videocon International Ltd. v. Securities and Exchange Board of India reported in MANU/SC/0023/2015 : (2015) 4 SCC 33, also cited by Mr. Mitra, Mr. Justice Khehar after discussing a large number of authorities laid down the following propositions which included quotations from the authorities discussed by his lordship on the subject:

"26********* (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal, even though remedial, is substantive in nature.

(iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law.

28.**********We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation than its language renders necessary, but an amending act which affects the procedure is presumed to be retrospective, unless amending act provides otherwise. We have carefully looked into the new substituted Section 15 brought in the parent Act by the Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may affect the rights of the parties on the date of adjudication of suit and same is required to be taken into consideration by the appellate court."

24. Therefore, to put it shortly changing the forum of appeal or the location of the appellate court is a procedural matter. But a new Act or amending Act changing the right of appeal or the conditions under which an appeal can be filed deals with a substantive right of a person. A vested substantive right of this nature is usually not disturbed by a new or amending Act. If such a right is sought to be extinguished there has to be an express or implied provision. This court relying on numerous decisions has held in Saraf Agencies Pvt. Ltd. and Ors. v. Federal Agencies for State Property Management and Ors. that an application to set aside the award is to be treated like an appeal and that all substantive rights accrue at the time of commencement of arbitral proceedings.

25. By amendment of Section 36 of the Arbitration and Conciliation Act, a party challenging an award has to deposit with the registry of the court the awarded amount or secure it to the satisfaction of the court, as a condition precedent to obtain stay thereof, pending the setting aside application, which condition was absent prior to the amendment. This is certainly an alteration of the conditions under which such an application was heard prior to the amendment, when stay was automatic on filing of a valid setting aside application. Thus the substantive rights of an award debtor have been affected.

26. The Special bench judgment of our court in the case of Union of India v. Amitava Paul along with the connected matter reported in MANU/WB/0371/2015 : AIR 2015 89 (FB) has only held that Order 41 Rule 1(3) was directory in nature. It made no comment as to whether the provision was to be taken as procedural or substantive law.

27. I do note that this court's view in Saraf Agencies Pvt. Ltd. and Ors. v. Federal Agencies for State Property Management and Ors. has been endorsed in the later case of Braithwaite Burn & Jessop Construction Co. Ltd. v. Indo Wagon Engineering Ltd. by Mr. Justice Soumen Sen.

28. Hence, the law prevailing at the time of commencement of the arbitration will apply till the disposal of the setting aside application at the highest level. The amending Act of 2015 did not alter any vested substantive right. Therefore, the right of the petitioner in arbitration which commenced before the coming into force of the amending Act, to challenge the award without any condition is preserved by the amendment Act.

IN THE HIGH COURT OF CALCUTTA

G.A. No. 3750 of 2015 and A.P. No. 1709 of 2015

Decided On: 17.07.2017

 West Bengal Power Development Corporation Ltd. Vs. Dongfang Electric Corporation

Hon'ble Judges/Coram:

I.P. Mukerji, J.

Citation: AIR 2017 Cal 297

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When court should permit secondary evidence of missing documents?

BH was called upon to produce several documents in the MMC inquiry. BH produced some of the documents and failed to produce the others. Register IV was produced by BH from the period 23rd April 1987 to 29th May 1987. This was for a period prior to the relevant period in this suit and in that inquiry. The same witness had identified the register produced for the earlier period as the register maintained by the operation sister in the OT in the normal course of the conduct of the hospital. The same register No. IV for the later period which was the relevant period was not produced by BH. BH has conducted an inquiry with regard to the missing documents. BH has instead produced the record of the inquiry. BH has produced certain records including the proceedings in the inquiry and the ultimate report of that inquiry as documents marked Exhibits-Z-1 to Z-7. These are the documents of the hospital produced by itself. None has challenged any of these as the documents of the hospital. Amongst these documents is inquiry conducted by three persons appointed as a Board dated 30th April 1990 instituted by the Executive Director, BH dated 11th April 1990 and the report of the inquiry marked as Exhibits-Z-5 and Z-6. The inquiry which was instituted was upon the report that the operation register maintained by the Senior Assistant of CST pertaining to the period between 13th October 1987 and 17th October 1988 was found missing when the search was conducted in April 1990. The report of the inquiry shows that the registers were kept in an open shelf. No security was provided and when the operation is performed the OT staff is busy. All the OT registers were available except for the above period. All these registers were required everyday. In the past there has been no theft of the operation registers or other documents. Only the relevant register was found missing. The exact date of the loss could not be detected. The conclusion of the inquiry drawn by the board was that the relevant operation register pertaining to the period between 13th October 1987 and 17th October 1988 had been removed from the OT of BH by some one who might be in some way connected/interested in the entries made in that register. It is surprising that BH who had conducted the inquiry well prior to the cross examination of P.W.3 could have objected to the production of the copy of the register. It is not for Defendants 1 and 2 to object the production of this document except for the purpose of not bringing the truth on record, if there being any such objection. They are independent Doctors. They are not concerned with the OT registers. It is for the Plaintiffs to rely upon the register and for the hospital to produce it just as is done with the medical record of the original Plaintiff No. 2, Exhibit-H. One of the registers is produced and the other was not. The Xerox copy of one register, admitted as an admitted document has been marked exhibit. The Xerox copy of the other register has been objected to be marked despite the conclusion that it was missing and a further conclusion that it could have been removed by an interested party. It may be mentioned that this is the most fit case for production of document by secondary evidence. The copies of the OT registers initially produced in the MMC and later found to be missing was marked "X-3 (colly)" for identification. It is surprising that one of the registers has been allowed to be marked Exhibit-Q and the other register has been so resisted for being marked in evidence. That is the register which was missing. When admittedly the original document once produced in evidence before any forum has been found missing a copy of the document must be marked on record as secondary evidence. No party has refuted that the copy of the OT register No. IV is an incorrect and fabricated copy. It has only been contended that because the original register has been missing the copy cannot be marked. This is an absurd contention. That would mean that any original document which is required by the Court to be seen for ascertaining the truth of the case can be got missing by any interested party and its copy earlier legitimately taken out and even used in earlier proceedings cannot be marked as document on record. In fact it is for such documents that the law relating to proof of documents by secondary evidence is specifically enacted.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

Padam Chandra Singhi and Ors.
Vs.
Dr. P.B. Desai and Ors.

Hon'ble Judges/Coram:
R.S. Dalvi, J.

Read full judgment here : click here

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