IN THE COURT OF CIVIL JUDGE, JUNIOR DIVISION, BHUBANESWAR

C. S. No. 2203/2016

Amogh Classes Pvt. Ltd. .... Plaintiff

Versus

Binod Kumar Bedu & Anr .... Defendants

WRITTEN NOTE ON BEHALF OF THE DEFENDANT

INDEX

Srl. Judgment Citation Page

No. No.
1 Written Note
2 P. Anand Gajapathi Raju vs. P.V.G.Raju [2000(2)Arb. LR 204
(dead) (SC)]
3 Hindustan Petroleum Corn. Ltd vs. [2003(2) Arb. LR
Pinkcity Midway Petroleums 666(SC)]
4 Agri Gold Exims Ltd. vs. Sri Lakshmi [2007(1) Arb.LR
Knits & Wovens 235(SC)]
5 Comed Pharmaceuticals Ltd. vs. Blue [2012(1) Arb. LR
Star Ltd. 279(Guj)]
6 A. Ayyasamy vs. A. Paramasivam and [(2016) 10 SCC 386]
ors.
7 Sri Ragavendra Advertising vs. Prasar 2010 (2) Arb. LR 279
Bharati (Madras)
8 Bharat Sanchar Nigam Limited vs. 2010(4) Arb. LR
Telephone Cables Ltd. 218(SC)

Date: For the Petitioner by

Place:

ADVOCATE
 IN THE COURT OF CIVIL JUDGE, JUNIOR DIVISION, BHUBANESWAR

C. S. No. 2203/2016

Amogh Classes Pvt. Ltd. .... Plaintiff

Versus

Binod Kumar Bedu .... Defendants

Written Note of Submission on Behalf of the Defendant

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.

C. That the defendant without submitting anything on the merit of the

suit and even before filing objection to the said I.A. No. 01/2016 has
filed a petition u/S. 8 of the Arbitration & Conciliation Act, 1996
praying therein to refer the parties to arbitration as there is an
arbitration agreement between the parties. Clause – 15 of the said
agreement dated 04.02.2014 stipulates for reference of any
dispute/conflict arising out of the agreement between the parties to a
mutually acceptable Arbitrator as well as the sole allegation of the
Opp. Party/Plaintiff is that the petitioners/defendants by issuing
letters/notices dated 22.09.2016 have violated the terms and
conditions of the agreement dated 04.02.2014. As such, the subject
 matter of the present lis is a ‘dispute’ referable to arbitration as per
the arbitration clause contained in the agreement.

D. That, for the better appreciation of the case at hand, it is necessary to

quote Section-8 of the Arbitration and Conciliation Act, 1996:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

[(1) A judicial authority, before which an action is brought in a matter which is the
subject of an arbitration agreement shall, if a party to the arbitration agreement or any
person claiming through or under him, so applies not later than the date of submitting his
first statement on the substance of the dispute, then, notwithstanding any judgment, decree or
order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that
prima facie no valid arbitration agreement exists.]

(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.”

The conditions which are required to be satisfied under sub-

sections (1) and (2) before the court can exercise its powers are-:
1. There is an arbitration agreement.
2. A party to the agreement brings an action to the court
against the other party.
 3. Subject matter of the action is same as the subject matter
of the arbitration agreement.
4. The other party moves the court for referring the parties
to arbitration before it submits it’s first statement on the
substance of dispute.
That there is a valid arbitration agreement as per section-7 of
the Arbitration and Conciliation Act,1996 read in consonance with
Clause-15 of the agreement dtd.04/02/2015 which states that -:
“15. In the event of any conflict/dispute on this agreement
between first party and second party, matter will be referred
to a mutually acceptable arbitrator”
That the Defendant has filed the present application for
referring the matter to the arbitration along accompanied by the
“Original Arbitration Agreement” and the matter in dispute is
resulting from same agreement. The defendant without submitting
it’s any statement on the matter in dispute has filed the petition U/s-
8 and hence there has been successful compliance of all necessary
elements of section-8. Hence, as enshrined in catena of judgments of
the Supreme Court, once all the elements of section-8 are satisfied
then, it becomes obligatory for the court to refer the parties to
arbitration in terms of their arbitration agreement. Furthermore,
nothing remains to be adjudicated in the original action.
The Supreme Court has even gone forward and held that once
there is an arbitration agreement, then Section-8 obligates as well as
mandates the referring of the dispute to be redressed by arbitration
mechanism.
JUDGMENTS RELIED ON
1. P. Anand Gajapathi Raju vs. P.V.G.Raju (dead), [2000(2)Arb.
LR 204 (SC)]
2. Hindustan Petroleum Corn. Ltd vs. Pinkcity Midway
Petroleums, [2003(2) Arb. LR 666(SC)]
3. Agri Gold Exims Ltd. vs. Sri Lakshmi Knits & Wovens,
[2007(1) Arb.LR 235(SC)]
4. Comed Pharmaceuticals Ltd. vs. Blue Star Ltd. [2012(1) Arb.
LR 279(Guj)]

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)]}

By the petitioner through

DATE:
Place:
Advocate