Asha Saini v. Omaxe Ltd

RAJIV SAHAI ENDLAW, J. JULY 26, 2017 "pp".. (corrected & released on 28th August, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 26th July, 2017. + CM(M) No.784/2017 & CM No.26357/2017 (for stay) ASHA SAINI ..... Petitioner Through: Mr. Praveen Mahajan, Adv. Versus OMAXE LTD ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.26358/2017 (for exemption) 1. Allowed, subject to just exceptions. 2. The application stands disposed of. CM(M) No.784/2017 & CM No.26357/2017 (for stay). 3. This petition under Article 227 of the Constitution of India impugns the order (dated 25th January, 2017 in Suit No.570/16 of the Court of Additional District Judge-04 (South-East), Saket Courts, New Delhi) allowing the application of the respondent / defendant under Section 8 of the Arbitration and Conciliation Act, 1996. 4. I have enquired from the counsel for the petitioner / plaintiff, whether a petition under Article 227 of the Constitution of India lies to the High Court against an order of the Civil Judge or the District Judge allowing an application under Section 8 of the Arbitration Act. 5. The counsel for the petitioner / plaintiff fairly states that he has not examined the said aspect. 6. Though I find this Court in (i) West Coast Paper Mills Ltd. Vs. Asha Kapoor (2009) 157 DLT 696; (ii) Neeraj Chopra Vs. Beena S. Aggarwal 2013 SCC OnLine Del 2914; and, (iii) Milistore Switchgears Pvt. Ltd. Vs. Samtal Colour Ltd. 2014 SCC OnLine Del 2652 and the High Court of Punjab and Haryana in (i) Ashok Kumar Jain Vs. Haryana Iron & Steel Rolling Mill, Hisar 2009 SCC OnLine P&H 7823; (ii) Pushpinder Kumar Vs. Joginder Pal 2010 SCC OnLine P&H 6413; (iii) Lovely Obsessions Pvt. Ltd., Gurgaon Vs. Sahara India Commercial Corporation Ltd., Gurgaon 2012 SCC OnLine P&H 11449; (iv) Inam Vs. Shri Ram City Union Finance Ltd. 2013 SCC OnLine P&H 14192; and, (v) Munish Singal Vs. B.S.N.L. 2012 SCC OnLine P&H 8903 and the High Court of Kerala in K. Sanil Vs. Bharath Sanchar Nigam Limited 2016 SCC OnLine Ker 33517 and the Bombay High Court in Sudam Singh Vs. S.K. Builders 2014 SCC OnLine Bom 2266 to have entertained petitions under Article 227 of the Constitution of India against the orders of the District Court on applications under Section 8 of the Arbitration Act but in none of the said judgments has the question of very maintainability of the petition been discussed. The said judgments cannot thus be said to be judgments laying down that a petition under Article 227 of the Constitution of India lies against the order of the District Court on an application under Section 8 of the Arbitration Act. 7. Before I proceed to discuss this aspect further, notice may also be taken of the amendment w.e.f. 23rd October, 2015 of Section 37 of the Arbitration Act whereby an appeal has been provided against an order refusing to refer the parties to arbitration under Section 8 of the Arbitration Act. Thus, while prior to 23rd October, 2015 appeal did not lie against the order on an application under Section 8 of the Arbitration Act whether of referring the parties to arbitration or of refusing to refer the parties to arbitration, now w.e.f. 23rd October, 2015 while an order refusing to refer the parties to arbitration is appealable, an order referring the parties to arbitration is not appealable. 8. The amendment w.e.f. 23rd October, 2015 has also amended Section 8 of the Arbitration Act. While Section 8 of the Arbitration Act prior to the said amendment was as under:- "(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement 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. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof; (3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending befor