Judgment:
ORDER
N.K. Agrawal, J.
1. Heard on admission.
2. This revision arises out of the order dated 9-7-2004 passed by the Additional District Judge, Jagdalpur in Civil Suit No. 15-B/2002.
3. Fact briefly stated are as under:
4. The plaintiff instituted a suit against the defendant for recovery of Rs. 2,08,156.80. The defendants filed their written statement in which apart from other pleas taken in defence, plea of non-maintainability of suit on account of existence of arbitration agreement has also been taken. Learned Trial Court framed following preliminary issue:
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5. Learned Trial Court by recording a finding that neither before or after filing of suit, application for appointment of arbitrator was filed by the defendants, held that the suit is maintainable. Hence this revision.
6. Shri Manoj Paranjpe, learned Counsel for the applicant relying upon the decision of the Supreme Court in the case of P. Anand Gajapathi Raju and Ors. v. P.V.G. Raju (died) and Ors. reported in AIR 2000 SC 1886, and upon the judgment of Gujarat High Court in Escorts Finance Ltd. v. Mansukh S. Dhokai reported in 2003 (3) Arb.LR 233 (Guj), would submit that since the plea of maintainability of suit on account of existence of arbitration agreement has already been raised by the defendants in the written statement filed by them, then it was incumbent upon the Court to sec whether or not, there is an arbitration agreement and if it finds that there is an arbitration agreement, then the intention of the Arbitration and Conciliation Act, 1996 (briefly, 'the Act of 1996') is to be implemented by referring the matter for settlement by arbitration. He would further submit that the intention of the Legislature can also be gathered from language used in Section 89 of CPC.
7. I have heard learned Counsel for the applicant.
8. Admittedly in adherence to the provisions contained in Section 8 of Act of 1996, neither application for reference of the dispute to arbitration was filed nor the original arbitration agreement or its duly certified copy was filed before submitting his first statement on the substance of the dispute by filing his written statement. The only ground raised in the written statement by the applicants is that the suit is not maintainable in the light of the arbitration agreement.
9. Under Section 9 of CPC, Civil Courts have jurisdiction to try all the suits unless barred expressly or by implication.
10. Section 8 of the Act of 1996 reads as under:
Section 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 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.
11. Admittedly, there was a clear non-compliance with Section 8 of the Act of 1996. The provisions contained in Section 8 are mandatory in nature and its non-compliance creates a right in favour of the plaintiff to have the dispute adjudicated by the Court and the opposite party is precluded in insisting upon the dispute to be adjudicated by arbitration.
12. The Supreme Court in case of P. Anand Gajapathi (supra), in Para 5 of its judgment held that provision contained in Section 8 of the Act of 1996 creates a right in favour of the person bringing the action to have the dispute adjudicated by Court, once the other party has submitted his statement of defence. Therefore, even as per the judgment referred and relied upon by Shri Paranjpe, a valuable right of adjudication of the dispute by the Court has been created in favour of the plaintiff.
13. It is also not a case that although the application has been preferred by the applicant subsequent to filing of their written statement which remained un-opposed by the plaintiff. Here in the instant case, no such application has been filed at all by the defendants/applicants. In view of the above fact, even the judgment of Gujarat High Court in Escorts Finance Ltd. (supra), relied upon by Shri Paranjpe is of no help to him.
14. The scheme of the provisions contained in Section 8 of the Act of 1996 clearly suggests that the fact of a party's failure to invoke the arbitration agreement by way of such a timely request prevents the party from invoking the agreement at subsequent phase of the Court proceeding unless, the other party does not object to it.
15. For the foregoing reasons, learned Trial Court has not committed any jurisdictional illegality in passing the order impugned.
16. The revision being devoid of substance liable to be and is hereby dismissed at motion stage.
17. Consequently, interim order granted on 14-3-2005 stands vacated.