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C. S. No. 2203/2016
Versus
Place:
ADVOCATE
IN THE COURT OF CIVIL JUDGE, JUNIOR DIVISION, BHUBANESWAR
C. S. No. 2203/2016
Versus
A. That the Plaintiff has instituted the present suit for declaring the
actions of the defendants in issuing notice dtd.22.09.2016 as illegal,
unlawful and not binding upon the plaintiff; as well as a decree of
mandatory injunction be passed directing the defendants to attend
and take up the classes of the plaintiff institution regularly till
completion of the agreement period i.e. till 04.02.2017; and
permanently restraining the defendants from starting a similar type
of educational institution like the plaintiff’s in the same locality and
from taking similar job in other educational institution.
B. That the case of the plaintiff as stated in the plaint is that the plaintiff
is providing coaching facility to the students for various competitive
examinations. The defendants were appointed as non-executive
Directors and were engaged in teaching the students. As the future of
the students totally depends upon them, the plaintiff institution used
to appoint the Non-Executive Directors at least for a minimum period
of 3 (three) years, so that the students will get acquainted with them.
Therefore the defendants were appointed for a period of 3 years
starting from 04.02.2014 to 04.02.2017. Accordingly, an agreement
was executed between the plaintiff and the defendants wherein the
remuneration was fixed and terms and conditions of their service
was also fixed. Furthermore, the allegation of the plaintiff that the
defendants have sent them the letter dated 22.09.2016, wherein, they
have stated to have shown their intention to terminate the contract
and have also threatened the defendant not to attend the classes. The
plaintiff has vide letter dated 24.09.2016 requested to abide to the
terms and conditions of the Agreement and not to stop attending the
classes. As alleged, this action will have serious repercussion on the
plaintiff institution. Moreover, the plaintiff has filed I.A. No. 01 of
2016 arising out of this suit praying therein to pass an ad-interim
injunction restraining the Opp. Parties not to stop attending the
regular classes of the petitioner institution and from starting similar
institution in the same locality and from taking similar job in other
institution. The Hon’ble Court has directed both the parties to
maintain status-quo vide Order dated 26.09.2016.
(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:
[Provided that where the original arbitration agreement or a certified copy thereof is
not available with the party applying for reference to arbitration under sub-section (1), and
the said agreement or certified copy is retained by the other party to that agreement, then, the
party so applying shall file such application along with a copy of the arbitration agreement
and a petition praying the Court to call upon the other party to produce the original
arbitration agreement or its duly certified copy before that Court.]
(3) Notwithstanding that an application has been made under sub-section (1) and that
the issue is pending before the judicial authority, an arbitration may be commenced or
continued and an arbitral award made.”
E. That, the Counsel for the plaintiff has argued on various points which
are taken care by the Following Points.-:
I. That the Arbitration tribunal is competent to hear all reliefs
and prayers. The Court may refuse reference to arbitration
and proceed with suit on merits only; (i) where court finds
very serious allegations of fraud that make a virtual case of
criminal offence, or (ii) where allegations of fraud are so
complicated that it becomes essential that such complex
issues can be decided only by civil court on appreciation of
voluminous evidence, or (iii) where serious allegations of
forgery/fabrication of documents in support of the plea of
fraud or (iv) where fraud is alleged against arbitration
provision itself, or (v) where fraud alleged permeates the
entire contract, including agreement to arbitrate where fraud
goes to the validity of contract itself or contract that contains
arbitration clause or validity of arbitration clause itself. {A.
Ayyasamy vs. A. Paramasivam and ors.[(2016) 10 SCC 386]}
II. That merely because there is inordinate delay in filing the
written statement it can not in anyway take away the rigor of
Section-8 of the 1996 Act. The law mandates whenever it is
brought to the notice of the Court before filing the written
statement that there is arbitration clause and the subject
matter of the suit is actually to be decided by the arbitrator, it
has got to be referred to arbitration (Sri Ragavendra
Advertising vs. Prasar Bharati, 2010 (2) Arb. LR 279
(Madras)(DB)).
III. That it not be specified that “award of the arbitrator must be
final and binding upon the parties”. It is not a necessity that it
must be mentioned in the arbitration clause as such an
addendum to the arbitration agreement shall violate the
mechanism prescribed under section-34 & 37 as well as other
provisions of the Arbitration and Concilliation Act,1996 and
also violative of Article-142 & 143 of the Constitution of India.
{Bharat Sanchar Nigam Limited vs. Telephone Cables
Ltd.[2010(4) Arb. LR 218(SC)]}