If any judgments are cited before Judge, it is incumbent upon him to ensure that said judgments find place in order.

 The first contention of Shri Kantak, learned Senior Counsel appearing for the petitioners is that the learned Judge has not given appropriate reasons whilst passing the impugned order. No doubt, in the impugned order there are no reasons given by the learned Judge and it was incumbent upon the learned Judge to consider the submissions advanced by the learned Counsels whilst passing the impugned order with regard to the application filed by the petitioners. If any judgments are cited before the learned Judge, it is incumbent upon him to ensure that the said judgments find place in the order. Nevertheless, considering that the impugned order was only dealing with an application filed by the petitioners seeking time to file written statement and reply in the suit, I find that merely because no reasons are given by the learned Judge would not vitiate the order especially taking into consideration the view which I propose to take in the above petition.

         IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 240 of 2012

Decided On: 29.03.2012

Appellants: Smt. Shaila Subrao Shetye, 
Vs.
Respondent: Smt. Kunda Madhukar Shetye, Hon'ble Judges/Coram:

F.M. Reis, J.

1. Heard Shri S. S. Kantak, learned Senior Counsel appearing for the petitioners, Mr. S. D. Lotlikar, learned Senior Counsel appearing for the respondent no.1, Mr. N. N. Sardessai, learned Counsel appearing for the respondent no.2, Mr. A. N. S. Nadkarni, learned Senior Counsel appearing for the respondent no.3, Mr. V. B. Nadkarni, learned Senior Counsel appearing for the respondent no.4 and Mr. M. S. Sonak, learned Counsel appearing for the respondent no.5. The above petition challenges the order passed by the learned Civil Judge Senior Division, Bicholim, dated 17.03.2012 whereby an application filed by the petitioners seeking further extension of time to file a reply after hearing the application under Section 8 of the Arbitration and Conciliation Act, 1996 ( herein after referred to as 'the said Act' ) came to be rejected.

2. Shri S. S. Kantak, learned Senior Counsel appearing for the petitioners has assailed the impugned order essentially on two counts. It is the contention of the learned Senior Counsel that once an application under Section 8 of the said Act is filed, the learned Judge has no jurisdiction to proceed with the suit. As such, according to him no further steps in the proceedings could have been taken by the learned Judge especially with regard to the application for temporary injunction filed by the respondent no.1 herein. The learned Senior Counsel has further pointed out that apart from filing an application under Section 8 of the said Act, the petitioners have also filed an application on 18.02.2012 for deleting the names of some of the defendants in the suit as according to them, they are not required for deciding the matter in controversy. The learned Senior Counsel has further pointed out that the learned Judge has committed an error in directing the petitioners to file a reply on the application for temporary injunction without first determining the application under Section 8 of the said Act. The learned Senior Counsel has taken me through the impugned order as well as the applications filed by the petitioners and pointed out that the learned Judge has erroneously exercised its jurisdiction in dismissing the application filed by the petitioners and as such this Court should set aside the impugned order in exercise of jurisdiction under Article 227 of the Constitution of India. The learned Senior Counsel has further taken me through the impugned order and pointed out that though authorities were cited in support of their contention before the learned Judge nevertheless such authorities are not found recorded in the impugned order nor any reason given as to why the submissions advanced by the petitioners were not considered whilst passing the impugned order. The learned Senior Counsel in support of his submissions has relied upon the judgments reported in MANU/SC/0482/2003 : (2003) 6 SCC 503 in the case of Hindustan Petroleum Corporation Ltd., V/s Pinkcity Midway Petroleums,MANU/SC/3491/2006 : (2006) 7 SCC 275 in the case of Rashtriya Ispat Nigam Ltd., and Another V/s Verma Transport Co., 2010(3) ALL MR 33 in the case of Severn Trent Water Purification Inc. V/s Chloro Controls India Pvt. Ltd., & Ors., MANU/SC/0258/2010 : (2010) 4 SCC 785 in the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota V/s Shukla and brothers, and MANU/SC/0281/2000: AIR 2000 SC 1886 in the case of P. Anand Gajapathi Raju and others V/s P. V. G. Raju ( died) and others. The learned Senior Counsel as such submits that unless and until the application under Section 8 of the said Act is decided by the learned Judge, the question of proceeding with the suit and hearing the application for temporary injunction does not arise.

3. On the other hand, Shri S. D. Lotlikar, learned Senior Counsel appearing for the respondent no.1 has supported the impugned order. The learned Senior Counsel has pointed out that prior to the filing of the application which came to be disposed of by the impugned order, the petitioners had filed another application before the learned Judge on 9.3.2012 wherein the petitioners had inter-alia sought liberty to file written statement after the application under Section 8 of the said Act was disposed of but sought for extension of time to file a reply till the next date of hearing. The learned Senior Counsel as such submits that the question of now resiling from the said stand and contending that the learned Judge was not justified to direct the petitioners to file a reply would not arise. The learned Senior Counsel further pointed out that the respondent no.1 being the plaintiff in the suit is seeking for an urgent relief as according to him, the respondent no.1 is entitled to protect his interest due to the dispute raised in the suit. The learned Senior Counsel further pointed out that merely directing to file a reply can by no stretch of imagination be considered to be a step into the proceedings and as such, it cannot prejudice the rights of the petitioners to proceed with the application under Section 8 of the said Act. The learned Senior Counsel further pointed out that the application under Section 8 of the said Act, itself according to him is misconceived as there is no arbitral dispute between the parties to the suit to be referred to arbitration. The learned Senior Counsel further pointed out that the whole exercise on the part of the petitioners is to delay the consideration of the application for temporary injunction filed by the respondent no.1. The learned Senior Counsel further pointed out that the learned Judge has not at all stated that all the applications would be heard simultaneously. The learned Senior Counsel as such submits that the petition deserves to be rejected.

4. Shri V. B. Nadkarni, learned Senior Counsel appearing for the respondent no.4 has supported the submissions of the learned Senior Counsel appearing for the respondent no.1, but however points out that the application filed by the petitioners for deleting the names of some of the defendants is according to him not maintainable in law. The learned Senior Counsel submits that in case the contentions of the petitioners are accepted the question of proceeding with supplementary proceedings under the Civil Procedure Code would not arise. The learned Senior Counsel as such submits that no relief is to be granted to the petitioners in the present petition.

5. Shri A. N. S. Nadkarni, learned Senior Counsel appearing for the respondent no.3 has also pointed out that merely filing a reply by no stretch of imagination can be considered to be taking a step in the suit which would prejudice the rights of the petitioners to pursue the remedy under Section 8 of the said Act. In support of his submissions, he has relied upon the judgment of the Apex Court reported in MANU/SC/0533/2011 : (2011) 5 SCC 532 in the case of Booz Allen and Hamilton Inc. V/s SBI Home Finance Limited and others.

6. I have carefully considered the submissions of the learned Counsels for the respective parties. I have also perused the pleadings as well as the application filed by the petitioners and with the assistance of the learned Counsels perused the relevant portions of judgments relied upon by them in support of their respective submissions. On going thoroughly and considering the rival contentions, I find three aspects are to be considered in the present petition.

7. The first contention of Shri Kantak, learned Senior Counsel appearing for the petitioners is that the learned Judge has not given appropriate reasons whilst passing the impugned order. No doubt, in the impugned order there are no reasons given by the learned Judge and it was incumbent upon the learned Judge to consider the submissions advanced by the learned Counsels whilst passing the impugned order with regard to the application filed by the petitioners. If any judgments are cited before the learned Judge, it is incumbent upon him to ensure that the said judgments find place in the order. Nevertheless, considering that the impugned order was only dealing with an application filed by the petitioners seeking time to file written statement and reply in the suit, I find that merely because no reasons are given by the learned Judge would not vitiate the order especially taking into consideration the view which I propose to take in the above petition.

8. With regard to the next contention of the learned Senior Counsel Shri Kantak, I find that the impugned order passed by the learned Judge disposing of the application filed by the petitioners can be separated into two parts. The first portion of the order is the contention of the learned Senior Counsel that the learned Judge has directed that all the applications would be decided together. The next portion of the order would be granting of the time to the petitioners to file a reply to the application for temporary injunction and written statement within a specific time.

9. Dealing with the first part of the impugned order, I find that considering that the petitioners have filed an application under Section 8 of the said Act and taking note of the ratio laid down in the judgments relied upon by Shri Kantak, the learned Senior Counsel appearing for the petitioners, it is appropriate that the learned Judge should lay off its hands in deciding the suit unless and until the application under Section 8 of the said Act is disposed of. Though Shri Lotlikar, learned Senior Counsel appearing for the respondent no.1 disputes the contention of the learned Senior Counsel Shri Kantak that the learned Judge wanted to dispose of all the applications simultaneously, I deem it appropriate to make necessary observations to ensure that the application under Section 8 of the said Act and the application for deletion of names of some of the defendants are decided before proceeding to decide the application for temporary injunction.

10. As such, I deem it appropriate that the learned Judge should be directed to decide the application under Section 8 of the said Act, before taking up the application for temporary injunction filed by the respondent no.1 for consideration. So also the contention of Shri V. B. Nadkarni, learned Senior Counsel appearing for the respondent no.4 to the effect that the application to delete the names of the defendants is not maintainable is a matter which would have to be considered by the learned Judge after hearing the parties nevertheless taking note of the contention of Shri Kantak, learned Senior Counsel appearing for the petitioners that the said application has been filed essentially to comply with the observations of the Division Bench of this Court in the case of Severn Trent Water Purification Inc. ( supra ), it would be appropriate that the learned Judge should also consider the said application along with the application under Section 8 of the said Act. As such, I find it appropriate that the learned Judge be directed to decide the application filed under Section 8 of the said Act as well as the application filed by the petitioners dated 18.02.2012 for deleting the names of the defendants in accordance with law. All the contentions on merits with regard to the said two applications raised by the respective counsels appearing for the respondents are left open.

11. With regard to the second part of the impugned order whereby the learned Judge has directed the petitioners to file a reply to the application for temporary injunction and written statement in the suit, I find that in view of the judgment of the Apex Court reported in MANU/SC/0533/2011: (2011) 5 SCC 532 in the case of Booz Allen and Hamilton Inc. V/s SBI Home Finance Limited and others, relied upon by the learned Senior Counsel Shri A. N. S. Nadkarni, appearing for the respondent no.3, merely filing a reply to the temporary injunction application would not tantamount to submission of statement on substance of dispute and as such it would not prejudice the rights of the petitioners in the application under Section 8 of the said Act. Considering that the said portion of the order only grants a time to file a reply and written statement, I find that it would not be appropriate for this Court to exercise its jurisdiction under Article 227 of the Constitution of India to interfere in an application granting time. Hence, as far as second part of the impugned order is concerned, directing the petitioners to file a reply to the application for temporary injunction and written statement in the suit, I find no reason to interfere in the said portion of the order. But however, in case the petitioners are so advised and files an application for further time, the learned Judge would have to consider such request on its own merits, but it is made clear that the petitioners are not entitled to seek time to file the reply to the temporary injunction application only after the application under Section 8 of the said Act stands disposed of.

12. At this stage, learned Senior Counsels appearing for the respective parties have pointed out that they are prepared to proceed with the arguments on the application under Section 8 of the said Act along with the application for deletion of names of some of the defendants on the next date of hearing fixed by the learned Judge i.e. on 31.03.2012 which the learned Judge may accordingly consider. Subject to the observations made herein above, the petitions stands disposed of accordingly.

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