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 Once an application is duly filed in terms of Section 8 of  The  Arbitration and Conciliation Act, 1996 (hereinafter referred to  as  ‘Arbitration  Act’) before the civil court, what should be the approach of  the  court?  -2015 S.C.MSKLAWREPORTS

 

In a suit for injunction filed by the respondent, the  prayer  made  was  to

restrain the first and second defendant  institutions  and  their  men  from

illegally taking away from the possession of plaintiff or her  employee,  or

interfering with the use and enjoyment of  ambassador or causing  damage  to

the car bearing registration  number  KL-11-AA-1473  in  the  ownership  and

possession of the plaintiff by way of a decree of injunction.  The  car  was

purchased on loan granted by the appellant.

Duly complying with the procedure under Section 8 of  the  Arbitration  Act,

the appellant filed an application bringing  to  the  notice  of  the  trial

court that in view of the agreement  for  arbitration  between  the  parties

regarding resolution of the disputes, the court did  not  have  jurisdiction

to try the case and the parties were  to  be  directed  to  the  process  of

arbitration in terms of the agreement. =

 Once an application is duly filed in terms of Section 8 of  The  Arbitration

and Conciliation Act, 1996 (hereinafter referred to  as  ‘Arbitration  Act’)

before the civil court, what should be the approach of  the  court?

 

Once an application in due compliance of Section 8 of  the  Arbitration  Act

is filed, the approach of the civil court should be not to see  whether  the

court has jurisdiction. It should be to see  whether  its  jurisdiction  has

been ousted. There is a lot of difference between the two  approaches.  Once

it is brought to the notice of the court  that  its  jurisdiction  has  been

taken away in terms of the procedure prescribed under a special statue,  the

civil court should first see whether there  is  ouster  of  jurisdiction  in

terms or compliance of the procedure under the special statute. The  general

law should yield to the special law – generalia  specialibus  non  derogant.

In such a situation, the approach shall not  be  to  see  whether  there  is

still  jurisdiction  in  the  civil  court  under  the  general  law.   Such

approaches would only delay the resolution of disputes  and  complicate  the

redressal of grievance and of course unnecessarily increase the pendency  in

the court.

The order dated 21.06.2010  passed  by  the  trial  court  and  order  dated

17.03.2014 passed by the High Court, are  set  aside.  The  trial  court  is

directed to pass fresh orders on the application  filed  by  the  appellant-

defendant under Section 8 of the Arbitration Act. The needful shall be  done

within a period of two months from the date of receipt of this order.-2015 S.C.MSKLAWREPORTS

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