TMI Blog1993 (3) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... r view, the High Court was justified in holding that in the facts of the case, only the original agreement, and not the copy, was binding between the parties. Hence, no reference to arbitration could be made. In the aforesaid circumstances, no interference is called for in the instant appeal and the appeal therefore, fails and is dismissed - Civil Appeal No. 1427 of 1993 - - - Dated:- 24-3-1993 - RAY, G.N. AND VENKATACHALLIAH, M.N., JJ. For the Appellant : S.K. Mehta For the Respondent : K. Ram Kumar JUDGMENT G.N. RAY, J. Leave granted. Pursuant to the notice issued on the Special Leave Petition No.7575 of 1992, the respondents have appeared and have filed counter affidavits and the appellant has also filed affidavit of rejoinder. The special leave petition out of which this appeal arises is directed against Order dated February 13, 1992 passed by the Andhra Pradesh High Court in Civil Revision No.2269 of 1991. The said Civil Revision was filed by the respondents against Order dated May 10, 1991 by which the learned Vth Additional Judge, City Civil Court of Hyderabad allowed the application filed under Sections 3, 5, 11 and 12 read with Sections 8 and 9 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous and while making copies of the arbitration agreement entered into between the parties, wrong sheets were enclosed but in the original agreement, since signed between the parties, there was no arbitration clause for the work in question. The appellant, however, gave a further notice dated January 5, 1989 through his learned Advocate calling upon the said respondent to concur for the appointment of any one of the three persons named in the said notice to act as an arbitrator to adjudicate the disputes and differences arising between the parties. On receiving such notice, the first respondent by his letter dated January 18, 1989 informed the learned Advocate of the appellant that as there was no arbitration clause in the agreement entered into between the parties, the question of entertaining the request to appoint arbitrator did not arise. In view of such failure on the part of the respondent to refer the dispute to the arbitration in terms of the said agreement between the parties, the appellant made a prayer for removing the named arbitrator in respect of the works in question and to appoint any one of the three persons named in the application as sole arbitrator to adjudicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy since supplied to the applicant had the stamp of the respondent No.2 and the covering letter under which the copy of the agreement was forwarded to the applicant also bore the seal and signature of the second respondent. Since the said copy of the agreement had not been fabricated by the applicant, the respondents were bound by the said Clause (3) as referred to in the copy of the agreement' As, despite such agreement, the respondents failed and neglected to refer the matter for arbitration, the learned Judge was of the view that the application should be allowed. The learned Judge, therefore, appointed Sri J. VenuGopal Rao, a retired District Judge, as the sole arbitrator for adjudicating all the disputes and differences between the parties and for entering upon the reference and thereafter sip and pass the award in accordance with law. The respondents being aggrieved by the aforesaid order of the learned Civil Additional Judge, moved the Andhra Pradesh High Court for revision. The learned Judge inter alia came to the finding that the original agreement Ex.B-1 since signed by the parties did not contain any arbitration clause at all. A copy of the agreement (Ex.A-3) was, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or 'arbitrator' or 'arbitrators' has been used in the agreement. It is also not necessary that agreement to arbitration should appear in the document containing the other terms of agreement between the parties. Law is well settled that arbitration clause may be incorporated by reference to a specific document which is in existence and whose terms are easily ascertainable. It is to be noted, however, that the question whether or not the arbitration clause contained in another document is incorporated in the contract, is always a question of construction. It should also be noted that the arbitration clause is quite distinct from the other clauses of the contract. Other clauses of agreement impose obligation which the parties undertake towards each other. But arbitration clause does not impose on any of the parties any obligation in favour of the other party. Such arbitration agreement embodies an agreement between the parties that in case of a dispute, such dispute shall be settled by arbitrator, or umpire of their own constitution or by an arbitrator to be appointed by the Court in an appropriate case. It is pertinent to mention that there is a material difference in an arbitrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the applicant there was a reference for arbitration as contained in the standard specifications. The learned Judge, City Civil Court, also proceeded on the footing that usually in the agreements relating to the nature of the contract, a provision for arbitration is made. As in the original agreement signed between the parties there was no such provision and the agreement was silent on the question as to what would happen if the disputes would arise between the parties, it should be presumed that the parties had really intended to refer the dispute to arbitration in accordance with the standard specifications and in the copy of the agreement which was forwarded to the applicant the provision for arbitration was included. The High Court however, was not inclined to accept this view of the learned Judge of the City Civil Court. The High Court was of the view that it was the signed agreement between the parties which was binding on the parties and only such written terms in the original agreement signed by the parties should be taken into consideration and not the terms contained in the copy of the agreement which was forwarded to the applicant after some time. It has been indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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