Rajive Bhalla, J.
1. Challenge in this revision petition is to an order, dated 21.4.2006, whereby the learned Additional Civil Judge (Senior Division), Ropar has dismissed an application, filed under Section 8 of the Arbitration and Conciliation Act, 1996 for short herein after referred to as 'the Act').
2. I have heard counsel for the parties and perused the impugned order.
3. The learned trial Court dismissed the application, under Section 8 of the Act, on the ground that a suit for specific performance could not be referred for adjudication to an Arbitrator, The above conclusion is incorrect and contrary to the judgment of this High Court in Lakshmi Narain v. Raghbir Singh , as affirmed by the Hon'ble Supreme Court in Olympus Superstructures Pvt. Ltd. v. Meena Vijay Khetan : [1999]3SCR490 . A relevant extract from the judgment of the Hon'ble Supreme Court in Olympus Superstructures Pvt. Ltd.'s case (supra) reads as follows:
32. One of the points raised in the grounds in this Court is that the grant of specific performance is discretionary and the discretion to grant or not to grant specific performance has been conferred by the Specific Relief Act, 1963 on the civil court and hence the arbitrator cannot be deemed to have been empowered to grant such a relief.
33. We may point out that the Punjab High Court in Lakshmi Narain v. Raghbir Singh the Bombay High Court in Fertilizer Corpration of India v. Chemical Construction Corporation I.L.R. (1974) Bom. 856 (D.B.) and the Calcutta High Court in Kevertter Agra Ltd. v. Seegram Comp. Ltd. A.P.O. 498 of 1997 and A.P.O. 449 (401) (dated 27.1.1988) have taken the view that an arbitrator can grant specific performance of a contract relating to immovable, property under an award. No doubt, the Delhi High Court in P.N.B. Finance Ltd. v. Shital Prasad Jain A.I.R. 1991 Delhi 31 has however held that the arbitrator cannot grant specific performance. The question arises as to which view is correct.
34. In our opinion, the view taken by the Punjab, Bombay and Calcutta High Courts is the correct one and the view taken by the Delhi High Court is not correct. We are of the view that the right to specific performance of an agreement of sale deals with contractual rights and it is certainly open to the parties to agree with a view to shorten litigation in regular Courts - to refer the issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. There is no prohibition in the Specific Relief Act, 1963 that issues relating to specific performance of contract relating to immovable property cannot be referred to arbitration. Nor is there such a prohibition contained in the Arbitration and Conciliation Act, 1996 as contrasted with Section 15 of the English Arbitration Act, 1950 or Section 48(5)(b) of the English Arbitration Act, 1996 which contained a prohibition relating to specific performance of contacts. concerning immovable property.
X X X X X X X X X X X X X X X X X X X X36. Further, as pointed out in the Calcutta case merely because there is need for exercise of discretion in case of specific performance, it cannot be said that only the civil court can exercise such a discretion. In the above case, Ms. Ruma Pal, J. observed:.merely because the sections of the Specific Relief Act confer discretion on courts to grant specific performance of a contract does not mean that parties cannot agree that the discretion will be exercised by a forum of their choice. If the converse were true, then whenever a relief is dependent upon the exercise of discretion of a court by statute e.g. the grant of interest or costs, parties could be precluded from referring the dispute to arbitration.We agree with this reasoning. We hold on Point 3 that disputes relating to specific performance of a contract can be referred to arbitration and Section 34(2)(b)(i) is not attracted. We overrule the view of the Delhi High Court. Point 3 is decided in favour of the respondents.
4. Other aspects of the matter that escaped the trial Court's notice were the need to reconcile the recitals in Clauses 4 and 9 of the agreement to sell. The former clause directs parties to approach a civil Court, whereas the latter requires parties to refer all disputes to an arbitrator. It would also be necessary to mention here, and as asserted by counsel for the respondents that their objections, in reply to the application, filed under Section 8 of the Act, as to the absence of the attested copy of the agreement to sell or the original thereof, the absence of any dispute and various other assertions, were not considered by the trial Court.
5. In view of the aforementioned errors apparent in the impugned order, the revision petition is allowed and the order, dated 21.4.2006 is set aside.
6. The matter is remitted to the learned trial Court to decide the application, under Section 8 of the Act, afresh in accordance with law, after taking into consideration all such objections/assertions as may be put forth by the parties. The trial Court shall decide the application within two months from the next date of hearing.