R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE1T DAY OF AUGUST, 2018 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.48325/2017(GM-CPC) BETWEEN:
1. TRANSVAHAN TECHNOLOGIES INDIA PVT.LTD. REGISTERED OFFICE AT:
202. KT-35, 89/1, 6TH MAIN, 16TH CROSS, MALLESWARAM, BENGALURU-560003. REPRESENTED BY ITS MANAGING DIRECTOR, S.R.VENKATESAN2 S. R. VENKATESAN, RESIDING AT: SMT.RAMAKKA, 202, KT-35, 89/1, 6TH MAIN, 16TH CROSS, MALLESWARAM, BENGALURU-560003. (BY SRI K. DHIRAJ KUMAR, ADVOCATE) AND:
1. SEPSON INDIA PVT.LTD., REGD. OFFICE: REE RAMA DEEVENA, NO.21, GROUND FLOOR, ULSOOR ROAD, BENGALURU-560042. REPRESENTED BY ITS EXECUTIVE DIRECTOR/ CHIEF EXECUTIVE OFFICER, MR. ANANTHRAJ HARDAR NABHIRAJ.
... PETITIONERS2 SEPSON AB REGD. OFFICE: APPELBOVAGEN41 780 50 VANSBRO SWEDEN, REPRESENTED BY ITS MANAGING DIRECTOR, MR.LARS ERIK BERGLUND, PHONE:
46. 281 758 40 3.
4. 5.
6. 2 LIDAN MARINE AB REGD. OFFICE: FISKAREGATAN3 531 18, LIDKOPING SWEDEN, REPRESENTED BY ITS CHAIRMAN, MR. CARL HENRIC WIKLUND, PHONE:
46. 705 276/ 46 510 545 250 MR. MATS ERIK LENNART ELFSBERG SJOMARKESGATAN10, 727 10 VASTERAS SWEDEN PHONE:
46. 706 972 748 THE DEFENDANT NO.2 TO4ARE ALSO AT THEIR REGISTERED OFFICE ADDRESS: SREE RAMA DEEVENA, NO.21, GROUND FLOOR, ULSOOR ROAD, BENGALURU-560042. BY ITS EXECUTIVE DIRECTOR. TATA MOTORS LTD., H.O. "BOMBAY HOUSE", NO.24, HOMI MODI STREET, MUMBAI-400 001, REPRESENTED BY ITS: EXECUTIVE DIRECTOR. ASHOK LEYLAND LTD., NO.1, SARDAR PATEL ROAD, GUINDY, BY ITS EXECUTIVE DIRECTOR. CHENNAI-600 032. ... RESPONDENTS (BY SRI SREEVASTA SENIOR COUNSEL FOR SRI RAHUL P. S., ADVOCATE FOR C/R1; VIDE
ORDERDATED0512.2017NOTICE TO R2 TO R6 IS DISPENSED WITH) … THIS WRIT PETITION IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDERPASSED BY THE LEARNED XXVI ADDITIONAL CITY CIVIL & SESSIONS JUDGE, MAYO HALL, BANGALORE ON I.A.2 UNDER SECTION8R/W SECTION5OF ARBITRATION AND CONCILIATION ACT IN3O.S.NO.25848/2017 DATED298.2017, VIDE ANNEXURE-F AND TO RESTORE O.S.NO.25848/2017 TO ITS ORIGINAL FILE WITH A DIRECTION TO DEAL THE SAME ON ITS MERITS. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS. COMING ON FOR PRONOUNCEMENT OF
ORDERTHIS DAY, THE COURT MADE THE FOLLOWING:
ORDERThis writ petition is filed by plaintiff Nos.1 and 2 against the order dated 29th August, 2017 on I.A.2 made in O.S.No.25848/2017 on the file of XXVI Additional City Civil and Sessions Judge allowing the application filed by defendant No.1 under Section 8 r/w Section 5 of the Arbitration and Conciliation Act, 1996 (for short, hereinafter referred to as ‘the Act’) to refer the matter for arbitration and to dismiss the suit. I – THE BRIEF FACTS OF THE CASE2 The petitioners, who are the plaintiffs before the trial Court filed a suit for declaration that defendant Nos.1 to 4 in deliberate gross violation of sub-contracting and manufacturing agreement dated 7.9.2015, manufactured 4 winches in Sweden and made direct supplies of winches to defendant Nos.5 and 6 as illegal, null and void; for permanent injunction restraining defendant Nos. 1 to 3 supplying the winches through their agents, henchmen, workmen, nominees, assignees and any other persons acting through them in any manner of supplying and delivering the winches to defendant Nos.5 and 6; and for mandatory injunction directing defendant Nos. 1 to 3 to take deliveries of winches from them and or supply to defendant Nos.5 and 6 as accorded to terms and conditions agreed upon.
3. It is the case of the petitioners that plaintiff No.1 is a registered company under the Companies Act, 1956 represented by its Managing Director Shri S.R. Venkatesan – plaintiff No.2. Plaintiff No.1 being a reputed company presently was engaged in manufacture, Assemble and Supply of Automotive components, Winch Systems, Vehicle body building and imparting Skill Training activities to unemployed youth in Automotive Sector. On account of the efforts made 5 by the plaintiff No.2 spread over a period of nine years, winches manufactured by respondent No.2 could pass through various internal inspections, stringent tests, extensive field trial evaluation conducted by respondent Nos.5 and 6 and only on satisfaction, purchase orders were issued.
4. It is the further case of the plaintiffs that in anticipation of bulk orders from respondent Nos.5 and 6, respondent Nos. 1 and 2 decided to manufacture and supply winches from India only rather than importing from Sweden which resulted in plaintiff No.1 and respondent Nos.1 and 2 entering into Sub-contracting and Manufacturing Agreement dated 25.6.2014. Under the said agreement, petitioner No.2 had to manufacture, assemble, quality test and store winches within the factory premises and respondent No.4 through an e-mail on 26.6.2014 also agreed to continue the said agreement for their future projects in India. 6 5. It is the further case of the plaintiffs that the 1st respondent entered into another agreement dated 7.9.2015 and as per the said agreement, plaintiff No.2 was given the mandate to manufacture and supply winches to respondent No.5 and on account of assurances given by respondent Nos.1, 2 and 4 had to sell his immovable property in Chennai apart from mortgaging his immovable property at Malleswaram, Bangalore, accumulated finances and built a modern world class factory at Nelamangala for manufacture and assemble of Sepson winches. On account of these two agreements, the plaintiffs with legitimate expectation of getting continuous orders from the respondents had to employ highly qualified and skilled experts in the field. The plaintiffs also set up Department for quality assurance and obtained various government approvals. Respondent No.1 along with respondent Nos.2 to 4 after inducing plaintiff No.2 to invest all his hard earned money and sweat unilaterally terminated the agreement with the petitioner and started 7 direct supplies to respondent Nos. 5 and 6. Therefore, the plaintiffs have filed a suit for the relief sought for. II – APPLICATION FILED BY THE DEFENDANT NO.1 6. After receipt of suit summons, defendant No.1 filed an application under Section 8 read with Section 5 of the Act to refer the parties for arbitration and to dismiss the suit as not maintainable contending that the defendant has not submitted his first statement and as such, there is no impediment in referring the suit for arbitration in accordance with the provisions of Section 5 r/w Section 8 of the Arbitration and Conciliation Act, 1996 and the allegation made by the plaintiffs were denied. It was further contended that the subject contracting and manufacturing agreement dated 7.9.2015 executed between defendant No.1 and plaintiffs contains valid and subsisting Arbitration in agreement which has been mutually accepted by the parties and the same also has been admitted by the plaintiffs at para-12 of the plaint. The suit filed by the plaintiffs is not 8 maintainable and the matter has to be referred to Arbitration, etc., and sought for dismissal of the suit. III - OBJECTIONS FILED BY THE PLAINTIFF TO THE APPLICATION7 The said application was resisted by the plaintiffs by filing objections and contended that the very application filed by defendant No.1 under Section 8 r/w Section 5 of the Act is bad in law since he has not complied with the requirement of Sub-section (2) of Section 8 of the Act, where he is required to produce the original agreement or certified copy of the agreement, but he has failed to produce the same and denied the averments made in the application. They further contended that the suit is filed by the plaintiffs for declaration and permanent injunction declaring that defendant Nos.1 and 2 are in gross violation of the agreement dated 7.9.2015. They also have sought for a declaration i.e., manufacturing of wenches in Sweden and supplying them to defendant Nos.5 and 6 is illegal and void and hence, sought for dismissal of the application. 9 IV -
ORDERPASSED BY THE TRIAL COURT8 The trial Court considering the application and the objections by the impugned order dated 29th August, 2017 allowed the application filed by defendant No.1 holding that in view of the dictum of the Gujarath High Court, it is sufficient that a copy of the Sub-contracting and Manufacturing Agreement dated 7.9.2015 produced by the plaintiffs is in compliance with the provisions of Section 8(2) of the Act. Hence, being aggrieved by the said order, the present writ petition is filed.
9. I have heard the learned Counsel for the parties to the lis. V - ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES10 Sri Dheeraj Kumar, learned Counsel for the petitioners-plaintiffs vehemently contended that the impugned order passed by the trial Court allowing the application filed by defendant No.1 and dismissing the suit on 10 the ground that the copy of the agreement produced by the plaintiffs is sufficient to hold that the defendants have complied with the provisions of Section 8(2) of the Act is erroneous and contrary to law. He further contended that to entertain an application under Section 8(2) of the Act, it is mandatory for the party applying to file the original copy of arbitration agreement or certified copy of the agreement. In case the original agreement is with the other side, then the application should contain a true copy of the agreement along with a petition praying to call upon the other party to produce the original arbitration agreement or its duly certified copy. Since defendant No.1 has not produced original arbitration agreement or certified copy of the agreement, the very application itself is not maintainable in view of the dictum of the Hon’ble Supreme Court in the case of Atul Singh –vs- Sunil Kumar reported in 2008(1) SCC214(SC).
11. He would further contend that an arbitrator can be appointed under the Act at the instance of the party to an 11 arbitration agreement only in respect of disputes with another party to the arbitration agreement. He also contended that if there is a dispute between a party to an arbitration agreement, with other parties to the arbitration agreement as also non-parties to the arbitration agreement, reference to arbitration or appointment of arbitrator can be only with respect to the parties to the arbitration agreement and not the non-parties. Therefore, in the present case, it cannot be divided into two parties, one against parties to the agreement and other against non-parties. It is only the Civil Court which has the jurisdiction to entertain the suit.
12. The learned Counsel for the petitioners further contended that Sub-section (2) of Section 8 of the Act is mandatory. Therefore the impugned order passed by the trial Court relying upon the copy of the agreement produced along with the plaint, cannot be sustained. In support of his arguments, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Ananthesh Bhakta represented 12 by his mother Smt. Usha A. Bhakta and others –vs- Smt. Nayana S. Bhakta and others reported in (2017)5 SCC185 Hence, he sought to allow the writ petition.
13. Per contra, Sri Sreevatsa, learned Senior Counsel for caveator/respondent No.1/defendant No.1 sought to justify the impugned order. He further contended that the plaintiffs have produced true copy of the arbitration agreement along with plaint certified by the plaintiffs through verifying affidavit filed by them as certified copy and the same was accepted by the defendants. Therefore, Sub-section (2) of Section 8 of the Act has been complied with.
14. The learned Senior Counsel for the respondent No.1 further contended that the petitioners-plaintiffs produced true copy of the arbitration agreement along with plaint as stated in para-12 of the plaint certified by them and accepted by the defendants as certified copy. He further contended that in the verifying affidavit produced along with the plaint, 13 at para-3 it is stated that ‘document Nos.1 to 38 produced along with plaint are photo copies of the originals.’ Therefore he would contend that Sub-section (2) of Section 8 of the Act has been complied with and there is no need for defendant No.1 to produce either certified copy of the agreement or the original arbitration agreement.
15. The learned Senior Counsel for the respondents would further contend that the judgment relied upon by the learned Counsel for the petitioners in the case of Ananthesh Bhakta was under the un-amended old Act. Therefore, the same is not applicable to the facts and circumstances of the present case. He would further contend that the trial Court is justified in relying upon the copy of the agreement produced by the plaintiffs along with the plaint is in compliance of the provisions of Sub-Section (2) of Section 8 of the Act. Therefore, the trial Court was justified dismissing the suit and referring the matter to the Arbitration. 14 16. In support of his contentions, the learned Senior Counsel relied upon the following judgments: i) Ameet Lalchand Shah and Others –vs- Rishabh Enterprises and Another in Civil Appeal No.4690/2018 dated 3rd May, 2018 (SC) at paragraphs-24 to 27 the Hon’ble Supreme Court has held that if the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void. 15 ii) Comed Pharmaceuticals Ltd. –vs- Blue Star Limited reported in (2012) 53(1) Guj.L.J.
397 wherein at paragraphs-9, 11, 12, 14 and 16 the Gujarath High Court has held that the copy of the arbitration agreement was already produced on record by the plaintiffs themselves and the application for referring the matter to the arbitrator was filed by the respondent-defendant. That being the position, the appellants cannot be allowed to raise this technical plea of non- compliance of the provisions of Sub-section (2) of Section 8 of 1996 Act and the copies of the agreement were not disputed by the defendants containing arbitration clause that had been annexed to the application under Section 8 were in sufficient compliance with Section 8(2) of the Act. Therefore, the learned Senior Counsel sought to dismiss the petition. 16 VI - POINTS FOR CONSIDERATION17 In view of the aforesaid rival contentions urged, the points that arise for consideration in the present writ petition are: (i) (ii) Whether the copy of the agreement produced by the plaintiffs along with the plaint has complied the mandatory provisions of Section 8(2) of the Act?. Whether the trial Court is justified in allowing the application filed by the defendant No.1 and referring the matter to Arbitration, dismissing the suit filed by the plaintiffs, in the facts and circumstances of the present case?. VII – DETERMINATION18 I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 17 19. It is the specific case of the plaintiffs that the application – I.A. No.2 was filed by the 1st defendant before the trial Court without the certified copy or original of the arbitration agreement and therefore the said application filed to refer the matter to arbitration and to dismiss the suit was not maintainable. It is the specific case of the 1st defendant that since the plaintiffs have produced the copy of the agreement along with the plaint and duly certified by the plaintiff, it complies the provisions of sub-section (2) of Section 8 of the Act and there is no need to produce either the certified copy of the agreement or the original arbitration agreement.
20. For better understanding, it is relevant to extract the provisions of Section 8 of the Act, which reads as under:
8. Power to refer parties to arbitration where there is an arbitration agreement. (1). A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the 18 arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration 19 agreement or its duly certified copy before that Court. (3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
21. A careful perusal of the said provision makes it clear that it can be divided into three parts: (i) That a Judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists. 20 (ii) That the application referred to in sub-section (1) of Section 8 shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof, as contemplated under sub-section (2). (iii) Where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court. Admittedly in the present case, the 1st defendant – 1st respondent has complied only the 1st part and has not complied the mandatory provisions of the 2nd and 3rd parts of Section 8 of the Act.
22. In view of the aforesaid three parts of the provisions of Section 8 of the Act, it is clear that party who wants to file 21 an application for arbitration shall file an application accompanied by the original arbitration agreement or a duly certified copy thereof. In sub-section (2) of Section 8 of the Act, the word used is ‘shall’. Therefore it is mandatory on the part of the 1st defendant to produce the original arbitration agreement or a duly certified copy thereof. Admittedly in the present case, the 1st defendant has not complied with the said provision even at the time of entertaining the application.
23. Though the learned senior counsel for the 1st defendant tried to persuade this Court that the plaintiffs have produced copy of the arbitration agreement along with the plaint and verifying affidavit and hence the said copy can be construed as certified copy, the said contention cannot be accepted. It is well settled that a certified copy is admissible as evidence in a law suit, when the original document cannot be produced because somehow it has been lost or destroyed. Certified copy means, a copy of a document signed and certified that it is a true copy of the original by the official who 22 has custody of the original. Admittedly in the present case, either the plaintiff or the 1st defendant has not produced the copy of the document signed and certified that it is true copy of the original by the official who has custody of the original. VIII THE PROVISIONS OF SECTION76OF THE INDIAN EVIDENCE ACT RELIED:
24. Section 76 of the Indian Evidence Act refers to certified copies of the public documents, which reads as under:
76. Certified copies of public documents.— Every 1public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. 23 Explanation.—Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
25. A plain reading of the said provision makes it clear that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies. Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of Section 76 of the Indian 24 Evidence Act. Therefore the contention of the learned senior counsel for the 1st defendant that a copy of the agreement produced along with the plaint complied the provisions of Section 8(2) of the Act, cannot be accepted. IX – THE DICTIONARY MEANING OF CERTIFIED COPY26 The Black’s Law Dictionary (9th Edition) defines the ‘certified copy’ as follows: “A duplicate of an original (usu. Official) document, certified as an exact reproduction usu. by the officer responsible for issuing or keeping the original. Also termed attested copy; exemplified copy; verified copy.” 27. The Law Lexicon (2nd Edition) defines the ‘certified copy’ as follows: “A copy of a document signed and certified as a true copy by the officer to whose custody the original is entrusted. A certified copy of a deed imports that it is an office copy taken from the record of deeds and certified by the proper officer.” 25 28. In the decision relied upon the learned senior counsel for the 1st defendant in the case of Comed Pharmaceuticals Ltd., v. Blue Star Limited reported in (2012)53(1)GLR397 the learned Single Judge of Gujarat High Court has not considered the effect of Section 76 of the Indian Evidence Act and in the said case, the plea of non- compliance of sub-section (2) of Section 8 of the Act was also not raised and in those circumstances the learned Judge allowed the application. The facts of the said case have no application to the facts of the present case. Admittedly in the present case, though the plaintiffs have produced copy of the agreement along with the plaint, when the defendant No.1 filed an application under the provisions of Section 8(2) of the Act, the plaintiffs have raised a specific plea of non- compliance of sub-section (2) of Section 8 of the Act. The defendant No.1 has not produced the certified copy or the original of the agreement before the Court even at the time of arguments advanced on the application filed by him. It is not a case of the defendant No.1 that the original document is 26 with the plaintiffs and therefore he has filed an application along with copy of the agreement praying the Court to call upon the other party to produce the original arbitration agreement or duly certified copy before the Court. Therefore the contention of the learned counsel for the respondents that copy of the agreement produced by the plaintiffs along with the plaint is sufficient in view of the dictum of the Gujarat High Court stated supra {(2012)53(1) GLR397, cannot be accepted.
29. Insofar as the other judgment relied upon by the learned senior counsel for the 1st respondent in the case of Ameet Lalchand Shah and others v. Rishabh Enterprises and another in C.A. No.4690/2018 reported in 2018 SCC Online SC487 wherein it is stated that Section 8 of the Act was amended by Amendment Act No.3/2016 w.e.f. 23.10.2015 amending Section 8(1) of the Act on the basis of the recommendations made by the Law Commission of India in view of dictum of the Hon’ble Supreme Court in the case of 27 Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya and another reported in (2003)5 SCC531 The said judgment will not be helpful to the case of the defendant. X - DICTUMS OF THE APEX COURT RELIED30 The Hon’ble Supreme Court while considering the provisions of Section 8 of the Act in the case of Atul Singh and Others v. Sunil Kumar Singh and others {(2008)2 SCC602 held at paragraph 19 as under:
19. There is no whisper in the petition dated 28-2- 2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non- compliance with sub-section(2) of Section 8 of the 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. The learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8of the Act, Defendant 3 should have filed the original arbitration agreement or a duly certified 28 copy thereof along with the petition filed by him on 28.2.2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit.
31. The Hon’ble Supreme Court while considering the provisions of Section 8(1) and 8(2) of the Act in the case of Ananthesh Bhakta vs. Nayana S. Bhakta reported in (2017)5 SCC185relying upon the earlier judgments of the Hon’ble Supreme Court in the case of Sunilkuamr Singh vs. Prabhu Devi {2005 SCC Online Pat 650}; Bharat Sewa Sansthan v. U.P. Electronic Corpn. {(2007)7 SCC737 and Atal Singh v. Sunil {(2008)2 SCC602, has held at paragraphs 14, 15, 16, 19, 20, 21, 22, 27 and 28 as under:
14. Section 8 which falls for consideration in the present case provides as follows: “8. Power to refer parties to arbitration where there is an arbitration agreement.—(1) A judicial authority, before which an action is brought in a matter which is the subject of an 29 arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub- section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.” 15. The appellants submit that sub-section (2) of Section 8 provides that: “8. (2) The application referred to in sub- section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.” 30 They submit that admittedly with the application IA No.IV filed on 9-5-2014, original or certified copy of the retirement deed and partnership deed was not filed.
16. The learned counsel for the appellants also placed reliance on a judgment of this Court in Atul Singh v. Sunil Kumar Singh [(2008) 2 SCC602: (2008) 1 SCC (Civ) 645].. In the above case, the defendant had moved a petition on 28-2-2005 praying for referring the dispute to arbitration. The trial court had dismissed the petition on the ground that the predecessor-in-interest of the plaintiff was not party to the partnership deed executed on 17- 2-1992. Hence the main relief being declaration of the deed to be void which could have been granted only by the civil court, the dispute could not be referred. The defendant filed civil revision which was allowed [Sunil Kumar Singh v. Prabha Devi, 2005 SCC OnLine Pat 650 : (2005) 4 PLJR110 by the High Court. One of the submissions made before this Court was that as per sub-section (2) of Section 8, the application could not have entertained unless it was accompanied by the 31 original arbitration agreement or duly certified copy thereof. This Court held that there is no whisper in the petition that the original agreement or a duly certified copy is being filed. There was non-compliance with Section 8(2). Hence the reference could not have been made. Following was stated by this Court in para 19: [Atul Singh case,, (2008) 2 SCC602: (2008) 1 SCC (Civ) 645 , SCC pp. 609-10]. “19. There is no whisper in the petition dated 28-2-2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non-compliance with sub-section (2) of Section 8 of the 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. The learned counsel for the respondent has submitted that a copy of partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, Defendant 3 should have 32 filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28-2- 2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit.” It is relevant to note that in Atul Singh case [(2008) 2 SCC602: (2008) 1 SCC (Civ) 645]. , the submission of the respondent was noticed that the copy of the partnership deed was on the record of the case, but the Court has not proceeded to examine as to when such copies are already on record what is the effect.
19. In Atul Singh case [(2008) 2 SCC602: (2008) 1 SCC (Civ) 645]. , which was also a judgment of two-Judge Bench, earlier judgment in Bharat Sewa Sansthan [(2007) 7 SCC737 was not cited. However, for the purposes of this case, we need not enter into the issue as to whether there is a compliance with Section 8(2) if photocopies of the arbitration agreement are already on the record and not disputed by the parties. 33 20. There is one another aspect of the matter which is sufficient to uphold the order of the District Judge. Section 8(2) uses the phrase “shall not be entertained”. Thus, what is prohibited is the entertainment of the application unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
21. The word “entertained” has specific meaning in P. Ramanatha Aiyar's Advanced Law Lexicon. The word “entertained” has been defined as: “Entertain.—(1) To bear in mind or consider; esp., to give judicial consideration to (the court then entertained motions for continuance). (2) To amuse or please. (3) To receive (a person) as a guest or provide hospitality to (a person). The expression “entertain” means to “admit a thing for consideration” and when a suit or proceeding is not thrown out in limine but the court receives it for consideration and disposal according to 34 law it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decision might be.” 22. The Black's Law Dictionary also defines this word “entertain” as follows: “entertain, vb. (1) To bear in mind or consider; esp., to give judicial consideration to court then entertained motions for continuance>.” 27. In the present case as noted above, the original retirement deed and partnership deed were filed by the defendants on 12th May and it is only after filing of the original deeds that the court proceeded to decide the application IA No.IV.
28. Section 8(2) has to be interpreted to mean that the court shall not consider any application filed by the party under Section 8(1) unless it is accompanied by the original arbitration agreement or duly certified copy thereof. The filing of the application without such original or certified copy, but bringing original arbitration agreement on record at the time when the court is considering the 35 application shall not entail rejection of the application under Section 8(2). (emphasis supplied) 32. In view of the above, sub-section (2) of Section 8 of the Act is mandatory and the judicial authority shall not entertain the application for referring the dispute to arbitration unless the applicant produces the original agreement or duly certified copy thereof before entertaining the application. Admittedly in the present case, the defendant No.1 has not produced either the original arbitration agreement or duly certified copy of the arbitration agreement entered into between the parties before entertaining the application. Therefore the 1st defendant has violated the mandatory provisions of sub-section (2) of section 8 of the Act. XI - CONCLUSIONS33 For the reasons stated above, the Point No.1 raised in the present writ petition has to be answered in the negative holding that the copy of the arbitration agreement produced 36 by the plaintiffs along with the plaint has not complied the mandatory provisions of Section 8(2) of the Act. Further, the defendant No.1 has not produced either original or certified copy of the arbitration agreement entered into between the parties, before entertaining the application filed by the defendant. Accordingly, Point No.2 raised in the present writ petition has to be answered in the negative holding that the trial Court is not justified in allowing the application filed by defendant No.1 and referring the matter for arbitration, dismissing the suit, in the facts and circumstances of the present case.
34. In view of the aforesaid reasons, the writ petition is allowed. The impugned order dated 29th August 2017 on I.A. No.2 made in O.S. No.25848/2017 as per Annexure-F is hereby set aside. I.A. No.2 filed by the defendant No.1 before the trial Court, under Section 8 r/w Section 5 of the Arbitration and Conciliation Act, 1996 is hereby dismissed. Consequently, suit is restored to its original file and the trial 37 Court is directed to dispose of the suit on merits, strictly in accordance with law. Ordered accordingly. Sd/- JUDGE Pages 1 to 15 .. nsu 16 to end.. ..gss/-