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Saturday, February 21, 2015

Once an application is duly filed in terms of Section 8 of The Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'Arbitration Act') before the civil court, what should be the approach of the court? -2015 S.C.MSKLAWREPORTS





In a suit for injunction filed by the respondent, the  prayer  made  was  to
restrain the first and second defendant  institutions  and  their  men  from
illegally taking away from the possession of plaintiff or her  employee,  or
interfering with the use and enjoyment of  ambassador or causing  damage  to
the car bearing registration  number  KL-11-AA-1473  in  the  ownership  and
possession of the plaintiff by way of a decree of injunction.  The  car  was
purchased on loan granted by the appellant.

Duly complying with the procedure under Section 8 of  the  Arbitration  Act,
the appellant filed an application bringing  to  the  notice  of  the  trial
court that in view of the agreement  for  arbitration  between  the  parties
regarding resolution of the disputes, the court did  not  have  jurisdiction
to try the case and the parties were  to  be  directed  to  the  process  of
arbitration in terms of the agreement. =
 Once an application is duly filed in terms of Section 8 of  The  Arbitration
and Conciliation Act, 1996 (hereinafter referred to  as  'Arbitration  Act')
before the civil court, what should be the approach of  the  court?

Once an application in due compliance of Section 8 of  the  Arbitration  Act
is filed, the approach of the civil court should be not to see  whether  the
court has jurisdiction. It should be to see  whether  its  jurisdiction  has
been ousted. There is a lot of difference between the two  approaches.  Once
it is brought to the notice of the court  that  its  jurisdiction  has  been
taken away in terms of the procedure prescribed under a special statue,  the
civil court should first see whether there  is  ouster  of  jurisdiction  in
terms or compliance of the procedure under the special statute. The  general
law should yield to the special law - generalia  specialibus  non  derogant.
In such a situation, the approach shall not  be  to  see  whether  there  is
still  jurisdiction  in  the  civil  court  under  the  general  law.   Such
approaches would only delay the resolution of disputes  and  complicate  the
redressal of grievance and of course unnecessarily increase the pendency  in
the court.

The order dated 21.06.2010  passed  by  the  trial  court  and  order  dated
17.03.2014 passed by the High Court, are  set  aside.  The  trial  court  is
directed to pass fresh orders on the application  filed  by  the  appellant-
defendant under Section 8 of the Arbitration Act. The needful shall be  done
within a period of two months from the date of receipt of this order.-2015 S.C.MSKLAWREPORTS

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