IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 12066 OF 2016
(Arising out of S.L.P. (C) No. 34016 of 2015)
Greaves Cotton Limited … Appellant
Versus
United Machinery and Appliances …Respondent
J U D G M E N T
Prafulla C. Pant,J.
Leave granted.
This appeal is directed against order dated 16.09.2015, passed by the High
Court of Judicature at Calcutta in GA No. 2998 of 2015 (in CS No. 2 of
2015), whereby said Court has rejected the application moved under Section
5 read with Section 8 of the Arbitration and Conciliation Act, 1996, to get
the dispute referred to arbitral tribunal.
Brief facts of the case are that appellant Greaves Cotton are manufacturers
of, inter alia, diesel engines. Respondent United Machinery and Appliances
are manufacturers of diesel generator sets. An agreement containing
arbitration clause was executed between them for supply of diesel engines
by the appellant to the respondent for using the same in the diesel
gensets. Arbitration clause contained in Article 10.1 of agreement dated
02.07.2007 (copy Annexure P-1) reads as under: -
“10.1 Any dispute or difference whatsoever arising between the parties out
of or relating to the construction, meaning, scope, operation or effect of
this Agreement or the validity or the breach thereof shall be referred to a
Sole Arbitrator to be appointed by Greaves. The decision of the Arbitrator
shall be final and binding upon the parties. The venue of arbitration
shall be Mumbai. The arbitration proceedings shall, in all other aspects,
be governed by the provisions of the Arbitration and Conciliation Act, 1996
or any subsequent statutory enactment in place thereof.”
The plaintiff-respondent filed civil suit (CS No. 2 of 2015) seeking decree
for an amount of Rs.4,92,76,854/- towards the loss and damages suffered by
it on account of alleged breach of contract on the part of defendant-
appellant. The High Court, in its original side, issued summons in the
suit on 06.01.2015 to the appellant. On the other hand, the appellant sent
communication to the respondent claiming that it was the respondent who has
to pay outstanding dues of Rs.1,04,53,103/- to the appellant. The
appellant, in response to the summons, on 07.07.2015 moved an application
(copy Annexure P-6) before the High Court seeking extension of time for
eight weeks to file written statement and invoked the arbitration clause
contained in the agreement dated 02.07.2007 by sending a letter dated
08.07.2015 (copy Annexure P-7) to the respondent, in response to which,
vide communication dated 13.07.2015 (copy Annexure P-7), it denied the
claim of the appellant, and objected to invocation of arbitration clause on
the ground of pendency of civil suit before the High Court. Thereafter,
the appellant moved Application GA No. 2998 of 2015 (copy Annexure P-10)
under Section 5 read with Section 8 of the Arbitration and Conciliation
Act, 1996 (for short “the 1996 Act”), in the suit seeking reference of the
disputes between the parties forming the subject-matter of the suit, for
arbitration, which is rejected by the High Court on the ground that the
appellant has, by moving application for extension of time to file written
statement, waived its right to seek arbitration. Hence, this appeal
through special leave.
We have heard learned counsel for the parties.
Before further discussion, it is just and proper to refer to relevant
provisions of law applicable to the case. Section 5 of the 1996 Act
provides that notwithstanding anything contained in any other law for the
time being in force, in matters governed by Part I, no judicial authority
shall intervene except where so provided in the said Part of the Act. Sub-
section (1) of Section 8 of the 1996 Act, as it existed prior to
23.10.2015, provided that a judicial authority before which an action is
brought in a matter which is the subject of an arbitration shall, if a
party so applies not later than when submitting his first statement on the
substance of the dispute, refer the parties to arbitration.
The issue before us for consideration is whether filing of an application
for extension of time to file written statement before a judicial authority
constitutes – ‘submitting first statement on the substance of the dispute’
or not.
For appreciating the intention of the Legislature, it is necessary for us
to examine the change in law brought about by the 1996 Act. In Manna Lal
Kedia and ors. v. State of Bihar and ors.[1], comparing the provisions
contained in Section 34 of the Arbitration Act, 1940 and Section 8 of the
1996 Act, High Court of Patna has opined as follows: -
“10. In terms of the Section 34 of the old Act a party was required to
apply for reference of the dispute to the arbitrator before filing written
statement or taking any other step in the proceeding. The words “or taking
any other step” were interpreted to include even application for
adjournment, for filing written statement. This obviously created
anomalies, not only frustrating the objects of arbitration but also
resulting in injustice in many cases. In order to bring about change in
this regard in the New Act in Section 8 (1), provision has been made to the
effect that the party intending to go in for arbitration must do so in his
“first statement on the substance of the dispute” and not later than that.
In other words, only if in the first statement on the substance of the
dispute he does not make such prayer that he is debarred from making that
prayer later. Section 8(1) of the New Act is, thus, an Improvement upon
the provisions of Section 34 of the old Act…….”
In Rashtriya Ispat Nigam Ltd. and another v. Verma Transport Co.[2],
interpreting the expression “first statement on the substance of the
dispute”, this Court has held as under: -
“36. The expression “first statement on the substance of the dispute”
contained in Section 8(1) of the 1996 Act must be contradistinguished with
the expression “written statement”. It employs submission of the party to
the jurisdiction of the judicial authority. What is, therefore, needed is
a finding on the part of the judicial authority that the party has waived
its right to invoke the arbitration clause. If an application is filed
before actually filing the first statement on the substance of the dispute,
in our opinion, the party cannot be said to have waived its right or
acquiesced itself to the jurisdiction of the court. What is, therefore,
material is as to whether the petitioner has filed his first statement on
the substance of the dispute or not, if not, his application under Section
8 of the 1996 Act, may not be held wholly unmaintainable…..”
This Court in Rashtriya Ispat Nigam Ltd. (supra) further held as under: -
“42. Waiver of a right on the part of a defendant to the lis must be
gathered from the fact situation obtained in each case. In the instant
case, the court had already passed an ad interim ex parte injunction. The
appellants were bound to respond to the notice issued by the Court. While
doing so, they raised a specific plea of bar of the suit in view of the
existence of an arbitration agreement. Having regard to the provisions of
the Act, they had, thus, shown their unequivocal intention to question the
maintainability of the suit on the aforementioned ground.”
In Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others[3],
while dealing with the question, this Court, in paragraph 19 of the
judgment, has laid down the law on the similar issue as under: -
“19. Where a suit is filed by one of the parties to an arbitration
agreement against the other parties to the arbitration agreement, and if
the defendants file an application under Section 8 stating that the parties
should be referred to arbitration, the court (judicial authority) will have
to decide:
whether there is an arbitration agreement among the parties;
whether all the parties to the suit are parties to the arbitration
agreement;
whether the disputes which are the subject-matter of the suit fall within
the scope of arbitration agreement;
whether the defendant had applied under Section 8 of the Act before
submitting his first statement on the substance of the dispute; and
whether the reliefs sought in the suit are those that can be adjudicated
and granted in an arbitration.”
This Court in Booz Allen and Hamilton Inc. (supra), has further observed in
paragraph 25 as under: -
“25. Not only filing of the written statement in a suit, but filing of any
statement, application, affidavit by a defendant prior to the filing of the
written statement will be construed as “submission of a statement on the
substance of the dispute”, if by filing such
statement/application/affidavit, the defendant shows his intention to
submit himself to the jurisdiction of the court and waives his right to
seek reference to arbitration. But filing of a reply by a defendant, to an
application for temporary injunction/attachment before judgment/
appointment of Receiver, cannot be considered as submission of a statement
on the substance of the dispute, as that is done to avoid an interim order
being made against him.”
In view of the law laid down by this Court, as above, we find it difficult
to agree with the High Court that in the present case merely moving an
application seeking further time of eight weeks to file the written
statement would amount to making first statement on the substance of the
dispute. In our opinion, filing of an application without reply to the
allegations of the plaint does not constitute first statement on the
substance of the dispute. It does not appear from the language of sub-
section (1) of Section 8 of the 1996 Act that the Legislature intended to
include such a step like moving simple application of seeking extension of
time to file written statement as first statement on the substance of the
dispute. Therefore, in the facts and circumstances of the present case, as
already narrated above, we are unable to hold that the appellant, by moving
an application for extension of time of eight weeks to file written
statement, has waived right to object to the jurisdiction of judicial
authority.
From the order impugned, it also reflects that before disposing of
application under Section 8 of the 1996 Act the High Court has not looked
into questions as to whether there is an agreement between the parties;
whether disputes which are subject-matter of the suit fall within the scope
of arbitration; and whether the reliefs sought in the suit are those that
can be adjudicated and granted in arbitration. In view of the above, we
think it just and proper to request the High Court to decide the
application afresh in the light of law laid down by this Court in para 19
of the judgment in Booz Allen and Hamilton Inc. v. SBI Homes Finance
Limited and others (supra) except the point, which has already been
answered in the present case by us.
Accordingly the appeal is allowed. The impugned order, passed by the High
Court is set aside. The High Court is requested to decide the application
(GA No. 2998 of 2015 in CS No. 2 of 2015) in the light of observation, as
above. No order as to costs.
……………….....…………J.
[J. Chelameswar]
.……………….……………J.
New Delhi; [Prafulla C. Pant]
December 14, 2016.
-----------------------
[1] AIR 2000 Pat 91
[2] (2006) 7 SCC 275
[3] (2011) 5 SCC 532
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 12066 OF 2016
(Arising out of S.L.P. (C) No. 34016 of 2015)
Greaves Cotton Limited … Appellant
Versus
United Machinery and Appliances …Respondent
J U D G M E N T
Prafulla C. Pant,J.
Leave granted.
This appeal is directed against order dated 16.09.2015, passed by the High
Court of Judicature at Calcutta in GA No. 2998 of 2015 (in CS No. 2 of
2015), whereby said Court has rejected the application moved under Section
5 read with Section 8 of the Arbitration and Conciliation Act, 1996, to get
the dispute referred to arbitral tribunal.
Brief facts of the case are that appellant Greaves Cotton are manufacturers
of, inter alia, diesel engines. Respondent United Machinery and Appliances
are manufacturers of diesel generator sets. An agreement containing
arbitration clause was executed between them for supply of diesel engines
by the appellant to the respondent for using the same in the diesel
gensets. Arbitration clause contained in Article 10.1 of agreement dated
02.07.2007 (copy Annexure P-1) reads as under: -
“10.1 Any dispute or difference whatsoever arising between the parties out
of or relating to the construction, meaning, scope, operation or effect of
this Agreement or the validity or the breach thereof shall be referred to a
Sole Arbitrator to be appointed by Greaves. The decision of the Arbitrator
shall be final and binding upon the parties. The venue of arbitration
shall be Mumbai. The arbitration proceedings shall, in all other aspects,
be governed by the provisions of the Arbitration and Conciliation Act, 1996
or any subsequent statutory enactment in place thereof.”
The plaintiff-respondent filed civil suit (CS No. 2 of 2015) seeking decree
for an amount of Rs.4,92,76,854/- towards the loss and damages suffered by
it on account of alleged breach of contract on the part of defendant-
appellant. The High Court, in its original side, issued summons in the
suit on 06.01.2015 to the appellant. On the other hand, the appellant sent
communication to the respondent claiming that it was the respondent who has
to pay outstanding dues of Rs.1,04,53,103/- to the appellant. The
appellant, in response to the summons, on 07.07.2015 moved an application
(copy Annexure P-6) before the High Court seeking extension of time for
eight weeks to file written statement and invoked the arbitration clause
contained in the agreement dated 02.07.2007 by sending a letter dated
08.07.2015 (copy Annexure P-7) to the respondent, in response to which,
vide communication dated 13.07.2015 (copy Annexure P-7), it denied the
claim of the appellant, and objected to invocation of arbitration clause on
the ground of pendency of civil suit before the High Court. Thereafter,
the appellant moved Application GA No. 2998 of 2015 (copy Annexure P-10)
under Section 5 read with Section 8 of the Arbitration and Conciliation
Act, 1996 (for short “the 1996 Act”), in the suit seeking reference of the
disputes between the parties forming the subject-matter of the suit, for
arbitration, which is rejected by the High Court on the ground that the
appellant has, by moving application for extension of time to file written
statement, waived its right to seek arbitration. Hence, this appeal
through special leave.
We have heard learned counsel for the parties.
Before further discussion, it is just and proper to refer to relevant
provisions of law applicable to the case. Section 5 of the 1996 Act
provides that notwithstanding anything contained in any other law for the
time being in force, in matters governed by Part I, no judicial authority
shall intervene except where so provided in the said Part of the Act. Sub-
section (1) of Section 8 of the 1996 Act, as it existed prior to
23.10.2015, provided that a judicial authority before which an action is
brought in a matter which is the subject of an arbitration shall, if a
party so applies not later than when submitting his first statement on the
substance of the dispute, refer the parties to arbitration.
The issue before us for consideration is whether filing of an application
for extension of time to file written statement before a judicial authority
constitutes – ‘submitting first statement on the substance of the dispute’
or not.
For appreciating the intention of the Legislature, it is necessary for us
to examine the change in law brought about by the 1996 Act. In Manna Lal
Kedia and ors. v. State of Bihar and ors.[1], comparing the provisions
contained in Section 34 of the Arbitration Act, 1940 and Section 8 of the
1996 Act, High Court of Patna has opined as follows: -
“10. In terms of the Section 34 of the old Act a party was required to
apply for reference of the dispute to the arbitrator before filing written
statement or taking any other step in the proceeding. The words “or taking
any other step” were interpreted to include even application for
adjournment, for filing written statement. This obviously created
anomalies, not only frustrating the objects of arbitration but also
resulting in injustice in many cases. In order to bring about change in
this regard in the New Act in Section 8 (1), provision has been made to the
effect that the party intending to go in for arbitration must do so in his
“first statement on the substance of the dispute” and not later than that.
In other words, only if in the first statement on the substance of the
dispute he does not make such prayer that he is debarred from making that
prayer later. Section 8(1) of the New Act is, thus, an Improvement upon
the provisions of Section 34 of the old Act…….”
In Rashtriya Ispat Nigam Ltd. and another v. Verma Transport Co.[2],
interpreting the expression “first statement on the substance of the
dispute”, this Court has held as under: -
“36. The expression “first statement on the substance of the dispute”
contained in Section 8(1) of the 1996 Act must be contradistinguished with
the expression “written statement”. It employs submission of the party to
the jurisdiction of the judicial authority. What is, therefore, needed is
a finding on the part of the judicial authority that the party has waived
its right to invoke the arbitration clause. If an application is filed
before actually filing the first statement on the substance of the dispute,
in our opinion, the party cannot be said to have waived its right or
acquiesced itself to the jurisdiction of the court. What is, therefore,
material is as to whether the petitioner has filed his first statement on
the substance of the dispute or not, if not, his application under Section
8 of the 1996 Act, may not be held wholly unmaintainable…..”
This Court in Rashtriya Ispat Nigam Ltd. (supra) further held as under: -
“42. Waiver of a right on the part of a defendant to the lis must be
gathered from the fact situation obtained in each case. In the instant
case, the court had already passed an ad interim ex parte injunction. The
appellants were bound to respond to the notice issued by the Court. While
doing so, they raised a specific plea of bar of the suit in view of the
existence of an arbitration agreement. Having regard to the provisions of
the Act, they had, thus, shown their unequivocal intention to question the
maintainability of the suit on the aforementioned ground.”
In Booz Allen and Hamilton Inc. v. SBI Homes Finance Limited and others[3],
while dealing with the question, this Court, in paragraph 19 of the
judgment, has laid down the law on the similar issue as under: -
“19. Where a suit is filed by one of the parties to an arbitration
agreement against the other parties to the arbitration agreement, and if
the defendants file an application under Section 8 stating that the parties
should be referred to arbitration, the court (judicial authority) will have
to decide:
whether there is an arbitration agreement among the parties;
whether all the parties to the suit are parties to the arbitration
agreement;
whether the disputes which are the subject-matter of the suit fall within
the scope of arbitration agreement;
whether the defendant had applied under Section 8 of the Act before
submitting his first statement on the substance of the dispute; and
whether the reliefs sought in the suit are those that can be adjudicated
and granted in an arbitration.”
This Court in Booz Allen and Hamilton Inc. (supra), has further observed in
paragraph 25 as under: -
“25. Not only filing of the written statement in a suit, but filing of any
statement, application, affidavit by a defendant prior to the filing of the
written statement will be construed as “submission of a statement on the
substance of the dispute”, if by filing such
statement/application/affidavit, the defendant shows his intention to
submit himself to the jurisdiction of the court and waives his right to
seek reference to arbitration. But filing of a reply by a defendant, to an
application for temporary injunction/attachment before judgment/
appointment of Receiver, cannot be considered as submission of a statement
on the substance of the dispute, as that is done to avoid an interim order
being made against him.”
In view of the law laid down by this Court, as above, we find it difficult
to agree with the High Court that in the present case merely moving an
application seeking further time of eight weeks to file the written
statement would amount to making first statement on the substance of the
dispute. In our opinion, filing of an application without reply to the
allegations of the plaint does not constitute first statement on the
substance of the dispute. It does not appear from the language of sub-
section (1) of Section 8 of the 1996 Act that the Legislature intended to
include such a step like moving simple application of seeking extension of
time to file written statement as first statement on the substance of the
dispute. Therefore, in the facts and circumstances of the present case, as
already narrated above, we are unable to hold that the appellant, by moving
an application for extension of time of eight weeks to file written
statement, has waived right to object to the jurisdiction of judicial
authority.
From the order impugned, it also reflects that before disposing of
application under Section 8 of the 1996 Act the High Court has not looked
into questions as to whether there is an agreement between the parties;
whether disputes which are subject-matter of the suit fall within the scope
of arbitration; and whether the reliefs sought in the suit are those that
can be adjudicated and granted in arbitration. In view of the above, we
think it just and proper to request the High Court to decide the
application afresh in the light of law laid down by this Court in para 19
of the judgment in Booz Allen and Hamilton Inc. v. SBI Homes Finance
Limited and others (supra) except the point, which has already been
answered in the present case by us.
Accordingly the appeal is allowed. The impugned order, passed by the High
Court is set aside. The High Court is requested to decide the application
(GA No. 2998 of 2015 in CS No. 2 of 2015) in the light of observation, as
above. No order as to costs.
……………….....…………J.
[J. Chelameswar]
.……………….……………J.
New Delhi; [Prafulla C. Pant]
December 14, 2016.
-----------------------
[1] AIR 2000 Pat 91
[2] (2006) 7 SCC 275
[3] (2011) 5 SCC 532
