Execution in arbitration when civil suit is pending
Gurpal singh
(Querist) 01 September 2012
This query is : Resolved
Dear Sir,
A customer filed a civil suit against us for restrain to repossession the vehicle. Due to non appearance, we treated as ex-perte & now matter set aside by the Hon’ble court with cost.
During pendency of this time, arbitration initiated & Arbitral Award passed & also Execution petition filed at ADJ Court. The Hon’ble ADJ court passed an ex-perte order for attachment of vehicle in Execution Petition. The matter pending on 10-09-2012 for filling the W/s,/ Reply/Application, etc
As discussed with Advocate/s that now we can file application for dismissal of suit OR simply make the statement “that we will not repossess the vehicle through forcibly/illegally manners” bcoz execution filed & attachment order passed by the superior court….!
Plz suggest the same for further action for filling the application for dismissal, App. U/s 8, Reply, W/s, Statement, etc……!
CC- Plz suggests the same if you have handled similarly proceedings…..!
regards
gurpal
Yogesh Anand
(Expert) 01 September 2012
Go by the advice of your advocate please. Since you have been exparte in all the forums, court will not show leniency to you.
Gurpal singh
(Querist) 01 September 2012
dear sir,
in civil case we were ex party,court has restored back ...in other ep case customer is ex party and warrant of attachment is issued against him
Yogesh Anand
(Expert) 01 September 2012
Since Arbitration award has become decree civil suit does not lie
R.K Nanda
(Expert) 01 September 2012
Civil suit is liable to be dismissed.
Gurpal singh
(Querist) 01 September 2012
sir,
in civil case should we go for sec 8 of arb and conc act or should we go for detail objection.
regards
Gurpal
Advocate Bhartesh goyal
(Expert) 02 September 2012
File application under O 7 R 11 0f C.P.C read with sec 8 of Arbitration and Conciliation Act 1996 mention therein that matter has been decided by Arbitrator and execution petition of Award is pending before ADJ court so this court has no jurisdiction to try and decide the suit and suit is barred by law so liable to be dismissed.
prabhakar singh
(Expert) 02 September 2012
The day he filed the suit he did have the cause of action to restrain you to possess the vehicle forcibly and that cause of action
still survives despite arbitration award passed and execution initiated.
Therefore it can NOT be said that his suit does not disclose any cause of action.Nor can it be said that the same is barred by any provision of law since the suit came in existence first.Despite arbitration award you can not take forcible possession hence a decree to that effect can still be passed in his suit and order 7 rule 11 of CPC is not attracted.I do not see how section 8 of the Arbitration and Conciliation Act is attracted when you already have enforced the award through your Execution petition.
The best course, in my view, is to deny the plaint allegations by sating that you never
tried or threatened to take forcible possession of the vehicle in question rather on his default you proceeded in accordance with law for arbitration in which award has been passed and the execution whereof is pending.He (the plaintiff)does not have cause of action and one he has pleaded is false hence suit be dismissed with cost.
Otherwise if you state straight forward that you shall not take forcible possession,the suit shall be decreed,may be without cost.
prabhakar singh
(Expert) 02 September 2012
The day he filed the suit he did have the cause of action to restrain you to possess the vehicle forcibly and that cause of action still survives despite arbitration award passed and execution initiated.
Therefore it can NOT be said that his suit does not disclose any cause of action.Nor can it be said that the same is barred by any provision of law since the suit came in existence first.Despite arbitration award you can not take forcible possession hence a decree to that effect can still be passed in his suit and order 7 rule 11 of CPC is not attracted.I do not see how section 8 of the Arbitration and Conciliation Act is attracted when you already have enforced the award through your Execution petition.
The best course, in my view, is to deny the plaint allegations by sating that you never
tried or threatened to take forcible possession of the vehicle in question rather on his default you proceeded in accordance with law for arbitration in which award has been passed and the execution whereof is pending.He (the plaintiff)does not have cause of action and one he has pleaded is false hence suit be dismissed with cost.
Otherwise if you state straight forward that you shall not take forcible possession,the suit shall be decreed,may be without cost.
Advocate Bhartesh goyal
(Expert) 02 September 2012
I totally differ with Mr Singh's opinion.on one side he says that "The day he filed the suit he did have the cause of action to restrain you to possess the vehicle forcibly and that cause of still survives despite arbitration award passed and execution initiated.
Therefore it can NOT be said that his suit does not disclose any cause of action.Nor can it be said that the same is barred by any provision of law" and on other side he suggests to say in court "you proceeded in accordance with law for arbitration in which award has been passed and the execution whereof is pending.He (the plaintiff)does not have cause of action"in my view Mr singh's opinion is self contradictory.When there exists a arbitration clause in agreement then any dispute regarding the matter can not be decided by the civil court.you have to move application under order 7 rule 11 of c.p.c and to say court that suit is barred by law.
prabhakar singh
(Expert) 02 September 2012
Mr.Goayal!
You do have right to differ with me till you fail to catch the point advanced by me.
1)unless the agreement provides to takeover possession back of the vehicle and default has been provided to be arbitrated ,the defaulter, suppose as the case is here,filed a case of injunction against forcible take back,the suit does show prima facie a cause of action and can not be rejected under order 7 rule 11 of C.P.C. as the court then needs to look into allegations made in plaint only and not of any defense side version.
2)the opposite side at then had right to invoke section 8arbitration.. but allowed the case to go ex parte.
3)Now the award is already passed and execution is in progress.
4)the suit is also in progress after setting aide the ex parte.
5)at this stage section 8 arbitration..act has no play as award and execution is already there.
6)even at this stage it can not be said that plaint as framed does not show any cause of action as for invoking jurisdiction u/o 7 r.11 c.p.c court can read no other material except the plaint.
This is why filing a W.S. is my advise by denying the cause of action pleaded which may be proved by circumstance that the defense side might have not threatened to take the vehicle forcibly as it proceeded for arbitration whose award is under execution process,hence the probability would preponderate in favor of defense that suit was filed without any threatening and plaintiff failing to prove cause of action is not entitled to relief and only then suit shall be dismissed.
Otherwise if defense chooses to simply state that they shall not forcibly take back possession then
court can decree the suit believing the version of plaintiff.And that is what defence advocate has advised to the author.
So moving any application u/o 7 r 11 or u/s 8 of arbitration...act is of no use is my opinion still valid in my view ,you agree or not is your own option.
