R. MCDILL AND COMPANY PVT. LTD. versus GOURI SANKAR SARDA AND OTHERS

R. MCDILL AND COMPANY PVT. LTD. versus GOURI SANKAR SARDA AND OTHERS

Order XXIII of the Code of Civil Procedure applies to applications filed under Section 34 of the Arbitration Act, 1940 in a suit, and the High Court erred in dismissing two separately filed stay applications as not maintainable. The expression ‘a fresh application’ in the withdrawal order should not preclude filing two separate applications where there are two separate agreements, absent mala fides.

Parties
Appellant: R. McDill and Company Pvt. Ltd.; Appellant: Misrilal Bharamchand (Pvt.) Ltd.; Respondent: Gouri Sankar Sarda; Respondent: Shri Misrilal Jain
Jurisdiction
India
Judgment Date
13 March 1991
Procedural Posture
Civil Appeal / Appeal by Special Leave Against the Order of the Calcutta High Court
Outcome
Appeals allowed
Legal Topics
Applicability of Code of Civil Procedure to Arbitration Act Proceedings, Withdrawal of Applications Under Arbitration Act, Order XXIII and Section 34 Arbitration Act
Civil Procedure Arbitration Applicability of Code of Civil Procedure to Arbitration Act Proceedings Withdrawal of Applications Under Arbitration Act Order XXIII and Section 34 Arbitration Act

Case Brief

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Parties

R. McDill and Company Pvt. Ltd.

Appellant

Misrilal Bharamchand (Pvt.) Ltd.

Appellant

Gouri Sankar Sarda

Respondent

Shri Misrilal Jain

Respondent

Procedural Posture

Civil Appeal / Appeal by Special Leave Against the Order of the Calcutta High Court

Legal Issues

  1. 1 Whether Order XXIII CPC is applicable to applications filed under Section 34 of the Arbitration Act, 1940
  2. 2 Whether liberty to file ‘a fresh application’ permitted the filing of two separate applications for stay by the two appellants under Section 34, Arbitration Act
  3. 3 Maintainability of two separate stay applications after withdrawal of a joint application under Section 34, Arbitration Act

Ratio Decidendi

Order XXIII of the Code of Civil Procedure applies to applications filed under Section 34 of the Arbitration Act, 1940 in a suit, and the High Court erred in dismissing two separately filed stay applications as not maintainable. The expression ‘a fresh application’ in the withdrawal order should not preclude filing two separate applications where there are two separate agreements, absent mala fides.

Court Disposition

Appeals allowed

Orders

  • Order of the Calcutta High Court dated 2nd February, 1973 set aside.
  • Case remanded to the High Court for decision on the maintainability and merits of the stay applications under Section 34, Arbitration Act.