Case Note & Summary
The petitioners, four individuals, entered into a development agreement on 6 August 2003 with respondent no. 5 as vendors and respondent nos. 1 to 4 as developers for a property in Thane. Disputes arose, and the petitioners filed Arbitration Petition (L) No. 404 of 2012 under Section 9 of the Arbitration and Conciliation Act, 1996, along with Leave Petition No. 211 of 2012 under Clause XII of the Letters Patent to seek leave to file the arbitration petition in Bombay. On 15 March 2012, the court granted leave ex parte. Respondent nos. 1 to 4 then filed Chamber Summons No. 545 of 2012 seeking recall of that leave order, arguing that the cause of action arose in Thane, not within the original civil jurisdiction of the Bombay High Court. The court considered whether an ex parte order granting leave under Clause XII can be recalled under inherent powers. The court held that the leave order is not a decree or final order and cannot be recalled under Section 151 CPC. The proper remedy is to challenge the leave in an appeal against the final award. The court dismissed the chamber summons, allowing the respondents to raise the jurisdictional issue before the arbitrator or in appeal.
Headnote
A) Civil Procedure - Letters Patent - Clause XII - Leave to File - Recall of Ex Parte Order - The court held that an order granting leave under Clause XII of the Letters Patent is not a decree or final order and cannot be recalled under Section 151 CPC. The proper remedy for the respondents is to challenge the leave in an appeal against the final award. (Paras 1-28)
B) Arbitration - Leave Petition - Jurisdiction - Challenge to Leave - The court held that the grant of leave under Clause XII is a preliminary jurisdictional issue that can be raised before the arbitrator or in appeal against the award, but not by way of a chamber summons to recall the leave. (Paras 15-28)
Issue of Consideration
Whether an ex parte order granting leave under Clause XII of the Letters Patent can be recalled by the same court under its inherent powers.
Final Decision
The Chamber Summons is dismissed. The respondents are at liberty to raise the issue of jurisdiction before the arbitrator or in an appeal against the final award. No order as to costs.
Law Points
- Clause XII Letters Patent
- Inherent powers under Section 151 CPC
- Recall of ex parte order
- Leave to file arbitration petition
- Jurisdictional challenge
Case Details
2013 LawText (BOM) (01) 76
Chamber Summons No. 545 of 2012 in Leave Petition No. 211 of 2012 in Arbitration Petition (L) No. 404 of 2012
Mr. S.U. Kamdar, Senior Advocate a/w. Ms. Pooja Patil, i/b. Mr. Nahush Shah for the Petitioners; Mr. P.K. Dhakephalkar, Senior Advocate, i/b. Mr. Amol Mhatre for Respondent Nos. 1 to 4
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Nature of Litigation
Chamber Summons seeking recall of an ex parte order granting leave under Clause XII of the Letters Patent in an arbitration petition.
Remedy Sought
Respondent Nos. 1 to 4 sought recall of the order dated 15 March 2012 granting leave to the petitioners to file Arbitration Petition (L) No. 404 of 2012.
Filing Reason
The respondents contended that the cause of action arose in Thane, not within the original civil jurisdiction of the Bombay High Court, and thus the leave was wrongly granted.
Previous Decisions
On 15 March 2012, the court granted leave ex parte in Leave Petition No. 211 of 2012.
Issues
Whether an ex parte order granting leave under Clause XII of the Letters Patent can be recalled by the same court under its inherent powers under Section 151 CPC.
Submissions/Arguments
Respondents argued that the leave was granted without jurisdiction as the cause of action arose in Thane, and the court should recall the order under its inherent powers.
Petitioners argued that the leave order is not a decree or final order and cannot be recalled; the proper remedy is to challenge it in appeal against the final award.
Ratio Decidendi
An order granting leave under Clause XII of the Letters Patent is not a decree or final order and cannot be recalled under Section 151 CPC. The proper remedy for challenging such leave is to raise the jurisdictional issue before the arbitrator or in an appeal against the final award.
Judgment Excerpts
By this Chamber Summons, Respondent Nos. 1 to 4 seek to recall the Order dated 15th March, 2012 passed in Leave Petition No. 211 of 2012 granted by this Court under Clause XII of the Letters Patent in Arbitration Petition (L) No. 404 of 2012 in favour of the petitioners.
The court held that the leave order is not a decree or final order and cannot be recalled under Section 151 CPC.
Procedural History
The petitioners filed Arbitration Petition (L) No. 404 of 2012 under Section 9 of the Arbitration and Conciliation Act, 1996, along with Leave Petition No. 211 of 2012 under Clause XII of the Letters Patent. On 15 March 2012, the court granted leave ex parte. Respondent Nos. 1 to 4 then filed Chamber Summons No. 545 of 2012 seeking recall of that leave order. The chamber summons was heard and reserved on 18 December 2012, and judgment was pronounced on 8 January 2013.
Acts & Sections
- Letters Patent (Bombay): Clause XII
- Code of Civil Procedure, 1908: Section 151
- Arbitration and Conciliation Act, 1996: Section 9
