Gaya Electric Supply Co., Ltd. Vs.
The-State of Bihar [1953] INSC 7 (3 February 1953)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN HASAN,
GHULAM
CITATION: 1953 AIR 182 1953 SCR 572
CITATOR INFO :
E&D 1985 SC1156 (49,52)
ACT:
Indian Arbitration Act (X of 1940), s. 34Contract
containing arbitration clause-Rescission of contract and suit by one
party--Application for stay of suit-Scope of arbitration clause-Construction of
clause.
HEADNOTE:
If the arbitration agreement is broad and,
comprehensive and embraces any dispute between the parties in respect of the
agreement, or in respect of any provision in the agreement, or in respect of
anything arising out of it, and one of the parties seeks to avoid the contract,
the dispute is referable to arbitration if the avoidance of the contract arises
out of the terms of the contract itself. Where, however, the party seeks to
avoid the contract for reasons dehors it, the arbitration clause cannot be
resorted to as it goes along with other terms of the contract. In other words,
a party cannot rely on a term of the contract to repudiate it and still say the
arbitration clause should not apply.
Where, however, an arbitration clause is not
so comprehensive and is not drafted in the broad language namely " in
respect of " any agreement, or "in respect of something arising out
of it", that proposition does not hold good.
The arbitration clause is a written
submission agreed to by the parties in a contract and like every written
submission to arbitration must be considered according to its language and in
the light of the circumstances in which it is made.
Disputes which arose between the State of Bihar and an Electric Supply Company whose licence had been revoked by the State were
settled by an agreement which provided that the State should make an advance
payment of Rs. 5 lakhs to the company, and the company should hand over the
undertaking to the State. The undertaking was to be valued, within 3 months and
if any money was found due to the company as per the Government valuation over
5 lakhs it will be paid to the company and if the valuation was less than 5
lakhs the company would refund the excess received by it.
The agreement, contained an arbitration
clause which ran as follows: " In the case of any difference or dispute
between the parties over the valuation as arrived at by the Government and that
arrived at by the company any such difference or dispute including the claim
for additional compensation of 20% shall be referred to arbitration." The
company instituted a suit against the State alleging that the State bad failed
to make its valuation. and to make, payment of the excess within the time fixed
and as time was of the essence of the contract, it had rescinded the agreement,
and praying for a declaration that the undertaking belonged to it, for damages
and appointment of a receiver. The State applied under s.
34 of the Arbitration Act for stay of the
suit:
Held, that the scope of the arbitration
clause was very narrow; -it conferred jurisdiction on the arbitrator only on
the question of valuation of the undertaking pure and simple. Questions
relating to the breach of contract or its rescission were outside the scope of
the clause and the suit could not be stayed under s. 34.
Heyman v. Darwins Ltd. (119421 A.C. 356)
referred to.
Harinagar Sugar Mills Ltd. v. Skoda (India) Ltd. (A.I.R.
1948 Cal. 230) and Governor-General in
Council v. Associated Livestock Farm Ltd. ([1937] 41 C.W.N. 563) distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 175 of 1951.
Appeal by Special Leave from the Order and
Decree dated the 30th March, 1951, of the High Court of Judicature at Patna
(Ramaswami and Rai JJ.) in Miscellaneous Appeal No. 19 of 1951 arising out of
the Order dated the 18th December, 1950, of the 'Court of the Additional
Sub-Judge Second at Gaya in Title Suit No. 47 of 1950.
N. C. Chatterjee (Rameshwar Nath, with him)
for the appellant.
M. C. Setalvad Attorney-General for India,
and Mahabir Prasad, AdvocateGeneral of Bihar (B. J. Umrigar with them) for the
respondent.
1953. February 3. The Judgment of the Court
was delivered by MAHAJAN J. This appeal by special leave arises out of an
application made by the State of Bihar against the Gaya Electric Supply Co.
Ltd. under section 34 of the IndianArbitration Act for stay of proceedings in a
suit filed by the company on 28th September, 1950. The facts relevant to this
enquiry are these.
574 A licence of or the supply of electric
energy in the town of Gaya was obtained by one Khandelwal in the year 1928
under the Indian Electricity Act, 1910. With the required sanction of the
Government the licence was transferred to the company in 1932. By a
notification dated 23rd June, 1949, the licence was revoked by the Government
with effect from 9th July, 1949. Thereupon the company filed a suit against the
State for a declaration that the revocation of the licence was arbitrary, mala
fide and ultra vires.
During the pendency of the suit negotiations
started between the company and the State for a settlement of the dispute and
ultimately on 28th October, 1949, a deed of agreement was arrived at between
them. The effect of the agreement and the correspondence referred to therein
was substantially as; follows :(a) That the company would withdraw the suit No.
58 of 1949 unconditionally on 25th October, 1949.
(b) That within three days of the withdrawal
of ,the suit the State of Bihar would make an advance payment of rupees five
lakhs to the company, and, simultaneously the company would formally hand over
the possession of the undertaking to an authorized officer of the Government.
(c) That both parties will make their
respective valuations within three months of talking over the undertaking and
any balance of money found due to the company as per Government valuation will
be paid to the company and in case of overpayment the excess paid to the
company on account of the " on account -payment " of rupees five lakhs
will be refunded to the, Government.
(d) That in the case of any difference or
dispute between, the parties over the payment of the balance which may be found
due after valuation such dispute shall be submitted to the-sole arbitration of
a single arbitrator who should be a high government officer of the provincial
government of rank equal to or higher than a Divisional Commissioner and his
award shall be binding and final on both parties.
575 The arbitration clause is contained in a
letter dated 13th October, 1949, and was substantially accepted by the company
in its letter dated 17th October, 1949. As set out by the State Government in
its application under section 34, it runs as follows " In the case of any
difference or dispute between the parties over the valuation as arrived at by
the Government and that arrived at by the company, such difference or dispute,
including the claim for additional compensation of 20 % shall be referred to
arbitration..." In pursuance of the agreement the respondent took over the
undertaking on 28th October, 1949, and also made a payment of rupees five lakhs
to the company.
On the 19th January, 1950, the company sent a
statement of valuation of the assets amounting to RS. 22,06,072, to the Chief
Electrical Engineer, Bihar. The Chief Electrical Engineer characterized the
valuation of 22 lakhs by the company as fantastic and stated that according to
a rough valuation the amount would be' approximately five lakhs and that the
final valuation would be settled after the company -had furnished a detailed
history of the plants and machineries. The company declined to give any further
details and stated that time was of the essence of the.
contract and it would be extended from 28th
January, to 15th February, 1950 On 6th April, 1950, the Chief Electrical
Engineer intimated that the 'valuation amounted to Rs.
6,56,221. No reply to this letter was
received and the State Government intimated to the company that as difference
and dispute had arisen relating to valuation, Mr. M. S. Rao, I.C.S. -was being
appointed as sole arbitrator to decide the dispute.
On 28th September, 1950, the company
instituted the suit, the subject-matter the application for stay, after
necessary notice under section 80 of the Code of Civil Procedure. In the plaint
it was alleged ,that as the State Government had failed and neglected to make
its valuation or to make payment to the 576 company by -the 15th March, 1950,
it committed a breach of the agreement and by reason of this breach the company
had rescinded the agreement and had forfeited the sum of five lakhs paid as
advance by the State. The company prayed inter alia for the reliefs of
declaration that the, electrical undertaking belonged to them, for damages, for
appointment of receiver and for injunction. On the 9th October, 1950, the State
Government filed the present application under section 34, of the Indian
Arbitration Act. It was stated therein that the company had with a, dishonest
and mala fide motive and with a view to avoid the decision of the matter in dispute
in arbitration instituted the suit on incorrect and false allegations. that the
arbitration agreement was still subsisting and valid and binding on the parties
and could not be taken as having been rescinded as alleged by the company, that
the cause of action as alleged in the plaint being noncompliance with the
agreement the suit arose out of and related to the agreement and was covered by
the arbitration clause and that the State Government was ready and willing to
have the dispute settled by arbitration. The company denied the allegations of
mala fides and pleaded that the arbitration clause was no longer in existence
and that even assuming it to be in existence, the suit was in no way connected
with the 'same and it was contended that the suit should not be stayed.
The subordinate judge held that the suit was
no in respect of any matter agreed to be referred, and that the court had no'
jurisdiction to stay the proceedings. In the result the stay application was
dismissed. Against this order the State Government appealed to the High Court.
The High Court held that the dispute in the suit was one which arose out of or
was in respect of the agreement and that the question in the suit was directly
within the scope of the arbitration clause. By an order of this court dated
22nd May, 1951, the company was granted special leave' under article 136(1) of
the Constitution.
' 577 Section 34 of, the Indian Arbitration
Act runs thus "Where any party to an arbitration comment Cost any legal
proceedings against any other party to the agreement in respect of any matter
agreed to be ,referred, any party to such legal proceedings may, apply to the
judicial authority before which the proceedings are pending to stay the
proceedings, and if satisfied that there is no sufficient reason why the matter
should not be referred in accordance with the arbitration agreement and that
the applicant was, at ,the time when the proceedings were commenced, and still
remains, ready and willing to do all things necessary to the proper conduct of
'the arbitration, such authority may make an order staying the
proceedings." From the language of the section it is quite clear that the
legal proceeding which is sought to be stayed must be in respect of a matter
which the parties have agreed to refer and which comes within the ambit of the
arbitration agreement. Where, however, a suit is commenced as to a matter which
lies outside the submission, the court is bound to refuse a stay. In the words
of Viscount Simona L. C. in Heyman v. Daruins Ltd' (1). the answer to the
question whether a dispute falls within an arbitration clause in a contract
must depend on (a) what is the dispute, and (b) what disputes the arbitration
clause covers. If the arbitration agreement is broad and comprehensive and embraces
any dispute between the parties "in respect of" the agreement, or in
respect of any provision in the agreement, or in respect of anything arising
out of it, and one of the parties seeks to avoid the contract, the dispute is
referable to arbitration if the avoidance of the contract arises out of the
terms of the contract itself.' Where, however, the party soaks to avoid the
contract for reasons dehors it, the arbitration clause cannot be resorted to as
it goes along with other terms of the contract. In other words, a party cannot
rely on a term of the contract (1) [1942] A.C. 356, 578 to repudiate it and
still say the arbitration clause should not apply. If he relies upon a
contract, be must, rely on it for all purposes . Where, however, an arbitration
clause is not so comprehensive and is not drafted in the broad language which
was, used in the House of Lords, case, namely' "in respect of" any
agreement, or in respect of something, arising out of it", that
proposition does not hold good.
The arbitration clause is a written
submission agreed to by the parties in a contract and like -every written
submission to arbitration must be considered according to its language and in
the light of the circumstances in which it is made.
Now as regards the first question, viz., what
is the present dispute about, the answer is to be gathered from paragraphs 14
to 17 of the plaint. It is averred therein that the Government of Bihar
committed breach of the agreement and failed to make any, valuation of the
undertaking or pay the balance of the compensation money, that time being of
the essence of the contract, the defendant failed and neglected to complete the
valuation within the time originally fixed or the extended time, and that by
reason of the breach of contract the plaintiff rescinded the agreement and
forfeited the sum of rupees five lakhs and that it is entitled to compensation
for the wrongful deprivation of the use of its property. No claim has been made
in the plaint for the valuation of the undertaking or for the payment of any
compensation for the undertaking; on the other hand, the claim in the suit is
founded on the rescission of the agreement containing the arbitration clause
and on a breach of that agreement. These are matters which may well be said to arise
out of the agreement and if the arbitration clause was broadly worded and
stated that all disputes arising out of the agreement would be referred to
arbitration, it could then probably have been said that the scope of the suit
was within the ambit of the arbitration clause, but the clause here is
differently worded.
The clause here is that if any difference. or
dispute arises between the parties over the payment of the 579 balance which
may be found due after valuation such dispute shall be submitted to the sole
arbitration of a single arbitrator. The scheme of the agreement is that the
Government was to make a valuation as laid' down in the Indian Electricity Act
within three, months of taking over the undertaking and any balance of money
found due to the company as per Government valuation was to be paid by the
Government, and in case of over-payment, the excess paid to the company on
account of the "on account payment" of rupees five lakhs mentioned in
paragraph 1 had to be refunded to government. In the case of any difference
between the parties over the valuation as arrived at by the Government and that
arrived at by the company, such difference or dispute, including the claim for additional
compensation of twenty per cent. had to be referred to arbitration a scope of
it is arbitration clause is a very narrow one. It only confers jurisdiction on
the arbitrator on the question of valuation of the undertaking pure and simple
and does not say that all disputes arising out of the agreement or in respect
of it will be decided by arbitration. Questions relating to the breach of
contract or its rescission are outside the reach of this clause. The arbitrator
has not been conferred the power by this clause to pronounce on the issue
whether the plaintiff was justified in claiming that time was of the essence of
the contract and whether the State Government committed a breach of the
contract by not making a valuation within the time specified. This clause is
therefore no answer to the company's query "Show me that I have agreed to
refer the subject-matter of the suit to an arbitrator." Besides this
clause in the agreement there is nothing else which can deprive the court of
its jurisdiction to decide the plaintiff's suit as brought.
Ramaswami J., with whom Rai J. concurred,
held that upon a perusal of the term,; of the contract and of the
correspondence it was obvious that no stipulation was made that the
compensation money 75 580 should be paid within the period of three months,
that on the contrary, the intention of the parties that the Government would
pay compensation money only after the award had been made by the arbitrator.
Now this is the very point which would be in issue in the suit itself, and the
learned Judge was in error in considering and deciding this point in this
enquiry under section 34. The validity of the plaintiff's contention in the
suit cannot be gone into by that court exercising jurisdiction under this
section as its function is a very limited one. The only point in such cases to
be decided is whether the claim which is brought whether it is good, bad or
indifferent comes within the submission to arbitration. It may be that there
are grounds upon which the defendant would be able to satisfy the proper
tribunal that the plaintiff's claim was frivolous and vexatious, but those
considerations, as pointed out by Banks L. J in Monro v. Bognor Urban Council
(1), are material only if the question to be considered is whether the case
made was a frivolous and vexatious one and ought to have had no weight at all
upon the question of what the plaintiff's claim in fact was and one can only
find out what his claim is by looking at the plaint.
The learned Judges in the High Court seem to
have thought that the arbitration clause here had been drafted broadly and that
all "disputes arising out of or in respect of the agreements were
referable to arbitration. Their reliance on the decision of the Calcutta High
Court in Harinagar Sugar Mills Ltd. v. Skoda India Ltd.(") in support of
the decision indicates the error. In that case the arbitration clause was
drafted in a comprehensive language and stated that a dispute arising out of
the agreement had to be referred to arbitration. Their reference to the case of
Governor General in Council v. Associated Livestock Farm Ltd. (3) also shows
that they were under the same erroneous impression. In this case the
arbitration clause was in these terms :(1) [1915] 3 K.B. i67.
(2) (1937) 41 C.W.N. 563.
(3) A.I.R. 1948 Cal, 230, 581 "Any
dispute or difference arising out of the contract shall be referred to the
arbitration of the officer sanctioning the contract whose decision shall be
final and binding." It is obvious that these decisions could have no relevance
to the arbitration clause as drawn up in the present case.
If the nature of the claim is as we have
indicated above, it seems plain that it does not come within the scope of the
submission.
In our judgment, therefore, the decision of
the learned Subordinate Judge was right and the Judges of the High Court were
in error in reversing it. In the result the only course open to us is to allow
the appeal with costs and to say that the plaintiff's claim is not within the
scope of the submission and that the petition under section 34 was rightly
dismissed by the Subordinate Judge.
Appeal allowed.
Agent for the appellants Rajinder Narain.
Agent for the respondent P. K. Chatterji.
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