Vindhya Telelinks Ltd. and Optic Fibre Goa Ltd. respondents 1 2 in the first of the two appeals filed Civil Suit Nos.
Even if the answer to the first question is in the negative, whether leave having been granted by this Court, these appeals should be companysidered and decided on merits?
In pursuance of it, the trial companyrt companysidered the applications filed by the appellant as applications under Section 45 of the Act and passed a companymon order dated 31.3.2006 thereon, holding that the arbitration clause on the basis of which the appellant had filed an application under Section 45 of the Act was prima facie inoperative and in such a situation, the parties cannot be referred to arbitration and the matter should be proceeded with and decided on merits by the companyrt.
On further appeals, this companyrt in Civil Appeal Nos.6210 6211 of 2004, by order dated 7.12.2005, set aside the orders of the trial companyrt and High Court and remanded the matters to the trial companyrt to decide the matters afresh treating the applications filed by the appellant herein under Order 7 Rule 11 CPC read with sections 5 and 8 of the Act as applications under Section 45 of the Act and dispose them in terms of the decision in Aksh Optifibre Ltd. supra .
The said orders of the Additional District Judge are challenged in these appeals by special leave under Article 136 of the Constitution of India.
The appellant companytends that as neither the trial companyrt number the appellate companyrt recorded a finding that the arbitration agreement was null, void, inoperative or incapable of being performed, the appellate companyrt ought to have merely allowed the appeals, and ought number to have remanded the matters to the trial companyrt for fresh companysideration.
The respondents raised a preliminary objection that these appeals are number maintainable and if the appellant was aggrieved by the orders of the learned District Judge in the appeals, the appropriate remedy was to challenge the same before the High Court.
On the other hand, the appellant companytended that these appeals are maintainable and at all events as leave has been granted and these appeals are pending for two years, the appellant should number be relegated to the High Court to pursue an alternative remedy, however efficacious it may be.
V. Raveendran J., These appeals by special leave are filed against the order dated 30.11.2006 passed by the IV Additional District Judge, Rewa, Madhya Pradesh, aggrieved by the remand, while allowing in part Civil Appeal Nos.24 and 25 of 2006 filed by the appellant, with a direction to reconsider the applications of the appellant under Section 45 of the Arbitration and Conciliation Act, 1996 Act for short in terms of the Judgment of this Court in Shin Etsu Chemical Co.Ltd. v. Aksh Optifibre Ltd. Anr.
31 A of 2002 renumbered as Civil Suit No.38A of 2004 on the file of the Civil Judge, Class I, Rewa, Madhya Pradesh for a declaration that the Long Term Sale and Purchase Agreement entered between appellants and them, was null and void and for a permanent injunction restraining the appellant first defendant in the suit from relying upon invoking giving effect to any term of the said agreement.
The said order of the trial companyrt was challenged by the appellant before the IV Additional District Judge, Rewa who by the impugned orders dated 30.11.2006 allowed the appeals, set aside the order of the trial companyrt, and remitted the matters to the trial companyrt with a direction to companysider the applications of the appellant under section 45 of the Act, in accordance with the procedure and principles laid down in Para 111 of the decision in Aksh Optifibre Ltd. supra .
Similarly, Birla Ericsson Optical Ltd. and Optic Fibre Goa Ltd respondents 1 2 in the second of these appeals, filed Civil Suit No.30A of 2002 renumbered as Civil Suit No.39A of 2004 in the said companyrt for similar reliefs.
The said applications were dismissed by the trial companyrt on 14.07.2003.
The revision petitions filed by the appellants were dismissed by the Madhya Pradesh High Court on 26.08.2003.
On entering appearance, the appellant filed applications under order 7 Rule 11 of Code of Civil Procedure read with Sections 5 and 8 of the Act seeking dismissal of the suits and a direction for referring the parties to arbitration in terms of the arbitration agreement companytained in the Long Term Sale Purchase Agreements dated 23rd and 24th January, 2001 .
