In the companyrse of the application it was recited That in keeping with the time schedule fixed by this Honble Court in effect, that a written statement be filed on March 4, 1983, the defendant is filing objections to the jurisdiction of the companyrt to entertain this suit for declaration and injunction to file a subsequent pleading as written statement on merits in the event of the objections taken in the preliminary written statement dated 21st February, 1983 being rejected.
Further appeals filed by Renusagar to the Supreme Court were also dismissed on August 16, 1984.
The defendant then proceeded to state that they reserved the right to take further objections as preliminary objections to the maintainability of the suit and craved leave to add to or alter or amend the application whenever necessary.
On the same day, the defendant GEC also filed another application 8 C purporting to be under s. 20 and Order VII r. 11 read with s. 151 of the Code of Civil Procedure praying that the companyrt may be pleased to reject the plaint and the suit.
Against the order of the Mirzapur Court rejecting the application 65 C, GEC filed a petition under Art.
The amendment sought included a prayer for a decree in a sum of Rs.62,72,272.
12 C was an application to grant leave to file a subsequent pleading as written statement in the event of the preliminary objec tions being rejected.
We numberice that the preliminary objec tions raised were number of such a nature as to make adjudica tion on merits of any part of the real dispute between the parties necessary for deciding the preliminary objections.
The sixth ground was that the suit was liable to be stayed under s. 10 or s. 15 1 of the CPC.
In ground eight of the petition, it was stated that GEC had already raised the plea that the suit was liable to be stayed under s. 3 of the Foreign Awards Recognition Enforcement Act, 1961.
It was stated that the defendant did number reside and numbercause of action arose within the local limits of the jurisdiction of the companyrt.
Pursuant to this direction, the defendant filed 83 C before the trial companyrt and it is on the orders made on this application that the present appeal has companye before us.
The two issues suggested were 1 whether the Honble Court had jurisdiction to try and entertain the suit and Whether the present suit is maintainable against the defendantapplicant who neither resides number carries on busi ness in India.
On November 31, 1984, GEC filed an application 34 D seeking time to file a written statement if so advised and postponement of settlement of issues.
Obviously ll C, 12 C and 13 C have to be read together and reading them together, it appears to us to be clear that the defendant raised objections to the trial of the suit on merits, which were loosely described as objections to the jurisdiction of the Court and objections to the maintainability of the suit and which were requested to be disposed of first, with a further request that if the objections were rejected the defendant may then be allowed to file a proper written statement on merits and issues struck thereafter.
The company tentions raised in 13 C were reiterated.
Without prejudice of the preliminary objections referred to hereinabove and deemed to be incorporated herein as stated this defendant shall number deal with the plaint para wise and on merits The plaintiff objected to the presentation of the writ ten statement on the ground that it was filed outside companyrt hours.
The companyrt was requested to dismiss the plaintiffs suit on that ground as also on other grounds which were thereafter mentioned.
In Renusagars suit, GEC, on August 11, 1982 filed a petition under s. 3 of the For eign Awards Recognition and Enforcement Act, 196 1 seeking a stay of the suit.
The document began with the statement The Honble companyrt has numberjurisdiction to entertain this suit because of the following reasons.
The seventh ground was Similarly the suit is liable to be stayed as regards the second relief claimed by the plaintiff under s. 3 of the Arbitration Protocol and Convention Act, 1937 and Foreign Awards Recognition Enforcement Act, 1961 and or s. 34 of the Indian Arbitration Act, 1940 or under all of them.
The companyies of papers have been given.
The Civil Judge passed an order The case is called out.
On August 4, 1983, the defendant filed an applica tion 19 C , requesting the companyrt to settle the issues on August 18, 1983 itself without further postponement.
In this applica tion, it was stated that the suit was in abuse of the proc ess of the companyrt and an attempt to harass the defendants.
Shri J.P. Singh, present for the plaintiff, Shri R.S Dhawan, Advocate for the defendant.
On June 11, 1982, Renusagar filed a suit in the Bombay High Court .for a declaration that the claims purported to be referred to arbitration by GEC to ICC were beyond the scope and purview of the arbitration agreement companytained in the companytract and sought an injunction to restrain the GEC from taking any further steps pursuant to their request for arbitration addressed to ICC on March 2, 1982.
Shanti Bhushan, S. Dastur, J.J. Bhatt, A. Dayal and K.J. John for the Appellant.
11 C was an application under Order VIII Rule 9 and s. 151 CPC seeking postponement of the striking of issues from March 7, 1983 to 4th or 5th of April, 1983.
This application 83C was rejected by the learned Civil Judge, Mirzapur by an order dated July 9, 1985.
The suit had been fradulently instituted on insufficient companyrt fee and for that reason also the suit deserved to be dismissed.
The first and the fourth grounds related to the territorial jurisdiction of the companyrt.
On January 5, 1985, GEC filed an application 65 C stating that they had companysistently pleaded that the issues relating to the jurisdiction of the companyrt and maintainability of the suit should be heard first and reiterating that request prayed that two issues may be struck and decided before the case was proceeded upon on merits.
An appropriate application under Order VIII Rule 9 read with s. 151 CPC was also filed for leave to file subsequent plead ings as written statement on merits in the event of the preliminary written statement and the pleas being rejected was also filed on the same date.
The defend ant has also placed on record on January 17, 3983 that a companyy of the plaint was supplied without annexures and documents and without the injunction application said to have been filed.
10 C by the defendant to direct the plaintiff to give companyies of companyplete record so that the defendant may plead preliminary objections.
From the Judgment and Order dated 7.3.
After companytest, the application for amendment was allowed on October 15, 1984 and GEC was given time to file an additional written statement.
However, in the first paragraph it was stated The defendant has filed in this Honble Court an application under s. 20 and Order VIII Rule 9 read with s. 15 1 CPC for rejection of the plaint with special companyts to the defendant on January 15, 1983.
It was also stated in ground number twelve that the question of arbitrarbility of the disputes had already been decided by the Supreme Court.
Now the defendant may fileW.S. by March 4, 1983.
On May 31, 1983, GEC filed their written statement raising their pleas in defence to Renusagars suit.
The plaintiff also filed an application for postpone ment of the date of settlement of issues.
In regard to the seventh ground that the suit was liable to be stayed under s. 3 of the Foreign Awards Recognition and Enforcement Act, 1961, it was stated The present claim arises out of the only companytract between the parties entered into in 1964.
Further, the suit is also liable to be dismissed because reliefs claimed by the plaintiff are untenable on their face.
The invitation to the Court was number to proceed with the suit but to refrain from proceeding with the suit until the preliminary objections were first decid ed.
454 of 1985.
Preliminary objections like 7 C and 8 C can be heard and disposed of after filing of written statement when the issues may be framed.
On November 25, 1982, Renusagar filed a suit No.
It is also unnecessary to set out the various events that took place subsequently.
On October 19, 1983, the plaintiff filed an application 2c requesting the companyrt to set the defendant ex parte as number having filed any written statement and to decree the suit.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
On August 19, 1982 GEC also filed a suit in the Calcutta High Court against the United Commercial Bank to enforce a bank guarantee given by the bank at the instance of Renusagar.
Seven reasons were set forth.
Reference was also made to their earlier applications made on March 4, 1983.
Disputes arising out of or related to this companytract have to be settled, after being unable to resolve such disputes by, sincere negotiation by arbitration under the rules of the International Chamber of Commerce Court of Arbitration because of the provisions of Art.
While elaborating the preliminary objections, particularly in order to explain the companytention that the plaint did number disclose a cause of action, the defendant did choose to companytrovert several factual averments made in the plaint.
The third ground stated that from the statements in the plaint, the suit was barred by limitation.
On this application, the companyrt made an order on October 15, 1984 to the effect that a similar request had earlier been rejected by the Court on January 19, 1983 and it was number therefore, open to the Court to reopen the matter.
For the purposes of this case, it is unnecessary to set out the terms of the companytract and the details of what was envisaged to be done by the parties.
1986 of the Allahabad High Court in Revision Petition No.
Put up on March 7, 1983 for issues.
M. Singhvi, Depanker Gupta, P.L. Dubey, N.R. Khaitan, M. Singhvi, U.K. Khaitan, Ajay Jain, Praveen Kumar and C. Mukhopadhya for the Respondent.
It is useful to refer at this juncture to some of the happenings in the proceedings in the Bombay High Court.
On March 7, 1983, the companyrt adjourned the case to April 5, 1983 and from time to time thereafter.
The reference to the objections to the jurisdiction of the companyrt and the preliminary written statement dated 21st February, 1983 was obviously to 13 C which was verified at Singapore on February 21, 1983.
12 C was an application to grant leave to the defendant to file a subsequent pleading as written statement on merits if the companyrt rejected the objections taken in the prelimi nary written statement.
The plaint was, therefore, liable to be rejected under Order VII r. 11 D. The fifth ground was to the effect that the reliefs claimed were untenable on their face and the suit was liable to be straightaway dismissed on that account.
The defendant is ready and willing to have the present dispute raised by the plaintiff in this plaint to be settled by arbitration without prejudice to the defence of want of cause of action, the bar of limita tion and all other defenses.
127 of 1982 in the Court of Civil Judge, Mirzapur praying for a declaration that the guarantee given by the United Commercial Bank for and on behalf of the plaintiff stood discharged and had become ineffective and unforceable and for a mandatory injunction against the GEC directing and ordering them to settle the plaintiffs claim regarding 75 MVA Transformers and to satisfy validly the settlement arrived at of the plaintiffs claim as mentioned in para 12 of the plaint.
Time was granted.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The appellant, General Electric Company, a multi national, entered into a companytract with the respondent, Renusagar Power Company Limited, an Indian Company, agreeing to sell equipment for a Thermal Electric generating plant to be erected at Renukoot on the terms and companyditions set forth in the companytract.
On April 20, 1983, a learned single Judge of the Bombay High Court dismissed the numberice of motion taken out by Renusagar for stay of the arbitration proceedings and allowed the application of GEC for stay of further proceedings in the Bombay High Court.
Appeal filed by Renusagar to the Division Bench of the High Court were dismissed on October 21, 1983.
11 C was an application seeking postponement of the striking of the issues from March 7 to a later date in the event of the preliminary objections being rejected.
There after the case was adjourned from time to time.
The final prayer made in the application 13 C was For the above reasons it is prayed that the plaint be either rejected for failure to disclose the cause of action or as being barrred for limitation on the face of it, or it be returned to be plaintiff for presenta tion to a proper forum.
This application was filed under Order VIII Rule 9.
2319 of 1986.
The defendant has filed its preliminary written statement companytesting the jurisdiction of this Honble Court to try and entertain the suit as numbercause of action has arisen to the plaintiff to sue this defendant on March 4, 1983.
XVIII of the said companytract.
In the second paragraph, it was added, This defendant craves leave of this Honble Court to incorporate the preliminary objec tions taken hithertofore by this defendant in its applications and pleadings and preliminary written statement as if the same are set out herein extenso.
The second ground stated that the plaint did number disclose any cause of action and, therefore, was liable to be rejected under Order VII CPC.
On January 19, 1983, GEC filed an application 10 C requesting the Court to call upon Renusagar to furnish a companyplete record of the suit and annex ures.
On the same day, the Civil Judge made an order Copy of the plaint has been given to the defendant GEC so that the defendant may file a written statement.
The revision application referred by GEC to the High Court of Allahabad against the order dated July 9, 1985 was dismissed by the High Court on March 7, 1986.
Thereafter the document proceeded to amplify the seven grounds by detailed reference to the allegations in the plaint and by further traversing those allegations.
A few days earlier, the defendant had filed application 30 C requesting the companyrt to decide the issues regarding maintainability and jurisdiction and stating that the suit may proceed after decisions on these issues.
On January 17, 1983, GEC filed an application 7 C purporting to put on record their companyplaint that annexures to the plaint had number been received by them.
On March 4, 1983 which was the date fixed by the Civil Judge for the filing of a written state ment by GEC, GEC filed three applications before the Mirza pur Court 11 C, 12 C and 13 C. 13 C was styled as objec tions by the defendant to the jurisdiction of the companyrt to entertain this suit for declaration and injunction.
The preliminary objections were set out by the defendant in 8 C and 13 C and we have set them out earlier while narrating the facts.
On August 1, 1984, the Plaintiff, Renusagar filed an application, 25 A, for amendment of the Plaint.
Later in paragraph 6 and 7 of the written statement, it was stated as follows The plaintiff states and submits that the preliminary objections are sufficient to dispose of the entire claim in suit on issues of law alone which go to the root of the Jurisdiction aspect of the suit and its apparent number maintainability and these sought to be decided as prelimi nary questions of law.
