the matter in respect of which the respondent sought reference to arbitration was "excepted matter" in terms of

the following principlesrelating to "Excepting matters" as under :- "1. These appeals by the grant of Special Leave pertains to the effect of the usual `excepted clause' vis-`-vis the arbitration clause in a Government contract. While it is true and as has been contended, that the authorization of the arbitrators to arbitrate, flows from the agreement but the High Court in the judgment impugned thought it fit to direct adjudication of `excepted matters' in the agreement itself by the arbitrators and hence these appeals before this Court. 2. At the outset, it is pertinent to note that in the usual Government contracts, the reference to which would be made immediately hereafter, there is exclusion of some matters from the purview of arbitration and a senior officer of the Department usually is given the authority and power to adjudicate the same. The clause itself records that the decision of the senior officer, being the adjudicator, shall be final and binding between the parties - this is what popularly known as `excepted matters' in a Government or Governmental agencies' contract. 3. `Excepted matters' obviously, as the parties agreed, do not require any further adjudication since the agreement itself provides a named adjudicator - concurrence to the same obviously is presumed by reason of the unequivocal acceptance of the terms of the contract by 11 the parties and this is where the courts have found our lacking in its jurisdiction to entertain an application for reference to arbitration as regards the disputes arising therefrom and it has been the consistent view that in the event the claims arising within the ambit of excepted matters, question of assumption of jurisdiction of any arbitrator either with or without the intervention of the court would not arise; the parties themselves have decided to have the same adjudicated by a particular officer in regard to these matters; what are these exceptions however are questions of fact and usually mentioned in the contract documents and forms part of the agreement as such there is no ambiguity in the matter of adjudication of these specialized matters and termed in the agreement as the excepted matters....."

REQUIREMENT OF rule 4 order 37 cpc

Where on an application, more than one among the specified reliefs
may be granted by the Court all such reliefs must be claimed in one application. It
is not permissible to claim such reliefs in successive petitions as it would be
contrary to the letter and spirit of the provision. That is why where an application
under Rule 4 of Order 37 is filed to set aside a decree either because the defendant
did not appear in response to summons and limitation expired, or having appeared,
did not apply for leave to defend the suit in the prescribed period, the Court is
empowered to grant leave to defendant to appear to the summons and to defend the
suit in the same application. It is, therefore, not enough for the defendant to show
special circumstances which prevented him from appearing or applying for leave
to defend, he has also to show by affidavit or otherwise, facts which would entitle
him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from
Rule 13 of Order 9.”





Indeed, an application under Order 37 Rule 4 CPC differs vis-a- vis an
application under Order 9 Rule 13 CPC for the reason an application under Order
37 Rule 4 CPC is a composite application determination whereof, if in favour of
the applicant, results in not only the ex-parte decree being set aside but leave to
defend being granted to the party concerned. It is for this reason law requires that
the defendant, in addition to show special circumstances which prevented him/her
from appearing, must additionally disclose facts entitling him/her to obtain leave to
defend.

Service of notice/summons U/O 37 CPC

O. 37 CPC specifically provides that in a suit under O. 37 CPC, the plaintiff shall together with the summons under Rule 2, serve the defendant with a copy of the plaint and annexure thereto. Thus where only summons have been affixed without affixing copy of the plaint and annexures thereto, the service is not in accordance with the provisions of O. 37 Rule 3 (1) CPC and this would be a sufficient ground to set aside the decree. The same view is taken by another bench of this Court in the case of New Bank of India Vs. M/s Master Steel Marketing Co.-1995 III AD (Delhi) 957. It was a case of the substituted service. It was held that where only copy of summons was published without publishing copy of the plaint and annexures there to, the service was not in accordance with law.

ORDER 37 RULE 3 (4 & 5) of C P C.

The question as to whether leave to defend a suit can be granted or not is within the discretionary powers of the High Court and it does not appear to us that such discretion has been exercised erroneously or with any irregularity which warrants interference by this Court.


it is now well established as a principle of law that even if a wrong order is passed by a Court having jurisdiction to pass an order in such cases, the revisional Court will not interfere with such an order unless a jurisdictional error is pointed out and established by the person who questions such order.

In the instant case, the High Court did not lack jurisdiction to pass an order with regard to the subject matter of dispute, though the order itself may be incorrect. There is, therefore, little scope for this Court to interfere with.

Whether quashing of FIR/criminal proceedings/complaint be allowed

The question whether a F I R under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves ?


We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before Court.

MODE OF SERVICE

Admittedly, notice under Section 138B of theNegotiable Instruments Act was sent to therespondents through registered post and under acertificate of posting on their correct address of therespondents. The High Court had quashedproceeding on the ground that although noticethrough registered post and also under certificate ofposting were sent by the appellant/ complainant tothe respondents but because of the endorsement ofthe postal peon, the service could not be said tohave been effected. In our view, the High Court wasnot justified in holding that service of notice couldnot be found to be valid. In K.Bhaskaran vs.Sankaran Vaidhyan Balan & Anr. [1999 (7) SCC510], it has been held that the context of section138B of the Negotiable Instruments Act invites aliberal interpretation favouring the person who hasthe statutory obligation to give notice under the Actbecause he must be presumed to be the loser in thetransaction and provision itself has been made in 3 his interest and if a strict interpretation is asked forthat would give a handle to the trickster chequedrawer. It is also well settled that once notice hasbeen sent by registered post with acknowledgmentdue in a correct address, it must be presumed thatthe service has been made effective. We do not findfrom the endorsement of the postal peon that thepostal peon was at all examined. In V. Raja Kumarivs. P. Subbarama Naidu & Anr. [2004 (8) SCC 774],again this Court reiterated the same principle andheld that the statutory notice under Sections 138and 142 of the Negotiable Instruments Act, 1881sent to the correct address of the drawer butreturning with the endorsement must be presumedto be served to the drawer and the burden to showthat the accused drawee had managed to get anincorrect postal endorsement letter on thecomplainant and affixed thereof have to beconsidered during trial on the background facts ofthe case.

arbitration clause

This appeal is directed against the Judgment and order for appointment of an Arbitrator on the ground that no Arbitration Clause was in existence between the parties.

It was held by the learned Addl. District Judge, that since the photocopy of the proposed agreement bears the signature of only the appellant and not that of the PGI, it could not be held that an arbitration agreement was executed between the parties and since there was no signature of the PGI on the said agreement, which was sent after signature of the appellant, remained only as an offer.

We may reiterate that in this case admittedly the documents which are on record apparently show supply of the material by the appellant to the PGI and acceptance thereof by the PGI in pursuance of the tender enquiry by them wherein tender of the appellant containing the arbitration clause was admittedly accepted by the PGI. Accordingly, we hold that arbitration agreement did exist and, therefore, dispute between the parties would be referred to an
Arbitrator for decision.

Therefore, considering the above aspects of the matter in this case, we must come to this conclusion that although no formal agreement was executed, the ender documents indicating certain conditions of contract contained an arbitration clause. It is also an admitted position that the appellant gave his tender offer which was accepted and the appellant acted upon it.

Insurance — whether a dispute raised by an insured, after giving a full and final discharge voucher to the insurer, can be referred to arbitration

When a contract contains an arbitration clause and any dispute in respect of the said contract is referred to arbitration without the intervention of the court, the Arbitral Tribunal can decide the following questions affecting its jurisdiction: (a) whether there is an arbitration agreement; (b) whether the arbitration agreement is valid; (c) whether the contract in which the arbitration clause is found is null and void and if so whether the invalidity extends to the Arbitration clause also.

It follows therefore that if the respondent before the Arbitral Tribunal contends that the contract has been discharged by reason of the claimant accepting payment made by the respondent in full and final settlement, and if the claimant counters it by contending that the discharge voucher was extracted from him by practicing fraud, undue influence, or coercion, the arbitral tribunal will have to decide whether the discharge of contract was vitiated by any circumstance which rendered the discharge voidable at the instance of the claimant. If the arbitral tribunal comes to the conclusion that there was a valid discharge by voluntary execution of a discharge voucher, it will refuse to examine the claim on merits, and reject the claim as not maintainable.

In what circumstances, a court will refuse to refer a dispute relating toquantum to arbitration, when the contract specifically provides forreference of disputes and differences relating to the quantum toarbitration?

a three Judge Bench of this Court culled out the following general principles as to when arbitration agreements operate and when they do not operate: