Kakinada Port

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DECLARATION SUIT AND INJUNCTION – ARBITRATION ACT SEC. 8 = Or.39, Rule 1 & 2 C.P.C. PRIMA FAICE IS MAINTAINABLE = It is not in dispute that the plaintiffs are in possession and enjoyment of the property. As a matter of fact, the defendants wanted them to vacate the premises. Till the question raised in the suit is decided, they are entitled to be in possession, subject however to payment of rents.As a result, the applications filed under Order 39 Rules 1 and 2 C.P.C. in the respective suits are allowed and the respective defendants are restrained from interfering with the possession of the plaintiffs or evicting them from the suit schedule premises, subject, however, to the condition that the rent shall be paid with enhancement at 10% over and above what is provided for under the lease deeds from January 2013 onwards. The difference of rent, if any in, this behalf, shall be paid within four (4) weeks from today. The payment of extra amount shall be subject to the outcome of the suits. ;WHEN REFERRING ARBITRATION AROSE & WHEN SUIT IS MAINTAINABLE = Law is also fairly well settled to the effect that if the agreement governing relationship of the parties contains a clause providing for arbitration, a suit for seeking redressal in relation to any dispute covered by the agreement cannot be maintained and it stands barred by Section 8 of the Act. However, a keen observation of the clause extracted above reveals that it is only when the dispute or question of difference arises out of, or in respect of, those presents or as to the construction, meaning or the subject matter of the lease presents or as to any act done or omitted to be done under the lease or the rights, duties and liabilities of the respective parties, referable to the agreement, that the matter shall be referred to arbitration. – no application was filed by the defendants under Order 7 Rule 11 C.P.C. for rejection of the plaint. They did not make any counter claim in the suit nor did they file any suit for reference of the matter to arbitration. Therefore, the order passed by the trial Court, referring the matter to arbitration cannot be sustained in law. The termination of the suit does not accord with the procedure prescribed under C.P.C. A decree could not have been passed outside the prayer in the suits.; ORDERS WHICH ARE dependant’ in nature and the challenge thereto cannot be rejected, on the ground that the suit itself stood terminated. That was a case, in which the delay in filing of appeal was condoned and the effected party challenged the order passed by the Court condoning the delay. Even while the proceedings, in which the order condoning delay was challenged, were pending, the appeal that came to be numbered was disposed of. An objection was raised to the effect that once the appeal has been disposed of, it is not at all open to the parties to challenge the order, through which the delay was condoned. This contention was negatived and the Hon’ble Supreme Court treated such appeals as ‘dependant’ upon the order, condoning the delay being sustained, whenever challenged. The same situation obtains in this case. REPORTED/PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9751

THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE K.G.SHANKAR C.M.A.Nos.126 of 2012 and Batch 03.04.2013 M/s. Ashok International rep., by its Managing Director. State of A.P. and others. Counsel for the Appellant: Sri V.L.N.G.K.Murthy Counsel for respondents: G.P. for Arbitration <GIST: >HEAD NOTE: ? Cases referred: 1. AIR 1988 SUPREME COURT … Continue reading

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