Jayanta Kumar Biswas, J.
1. The Court: The defendant in the suit has taken out this application Arbitration and Conciliation Act, 1996 dated March 12, 2008 under Section 8 of the seeking an order referring the parties to arbitration on the ground that the dispute involved in the suit is covered by an arbitration agreement whereby both the parties are bound.
2. The plaintiff has filed opposition taking the ground that the application is not maintainable, since it was not accompanied by the original arbitration agreement or a duly certified copy thereof. It has taken a few more grounds questioning the maintainability of the application. It is also contending that the subject matter of the suit cannot be said to be a dispute covered by the arbitration clause referred to and relied on by the defendant.
3. In support of his contention that an application under Section 8 not accompanied by the original arbitration agreement or a duly certified copy thereof is quite maintainable, if the application is accompanied by a xerox of the agreement containing the arbitration clause, Mr. Sen, counsel for the defendant, has relied on ITC Classic Finance Ltd. v. Grapco Mining and Co. Ltd. and Anr. : AIR1997Cal397 , and Bharat Sewa Sansthan v. U.P. Electronics Corporation Ltd. (2007) 7 SCC 737. His submission is that the requirement of filing the original arbitration agreement or a duly certified copy thereof should be treated as a technical requirement, and hence on the ground that the application is accompanied only by a xerox of the relevant arbitration clause it should not be thrown out, especially when the plaintiff has not specifically questioned the genuineness of the document or existence of the arbitration clause. He has said that even if it is held that the application not accompanied by the original arbitration agreement or a duly certified copy thereof is not maintainable, it should not be dismissed, since the defendant is in a position to produce the original arbitration agreement by filing a supplementary affidavit.
4. Mr. Deb, counsel for the plaintiff, has submitted that in view of the law declared by the Supreme Court in Atul Singh and Ors. v. Sunil Kumar Singh and Ors. : AIR2008SC1016 there is absolutely no scope to entertain the defendant's application which is admittedly not accompanied by the original arbitration agreement or a duly certified copy thereof. According to him, since the application has been filed without complying with the mandatory provisions of Section 8(2), there is no scope to permit the defendant to produce the original arbitration agreement or a duly certified copy thereof with a supplementary affidavit. His contention is that there is no reason to say that the requirement is of a technical nature.
5. In view of the question whether the application is entertainable at all, I think it will be appropriate to decide this question before entering into the merits of the application. If it is found that the application is not entertainable, in my opinion, in that case it will not be proper to express any opinion on the merits of the case, because even if the application is dismissed on the ground that it is not entertainable, the defendant will enjoy the liberty of filing an appropriate application complying with the provisions of Section 8(2). For these reasons, I have decided to examine the question whether the application is at all entertainable.
6. The single Judge decision of this Court in ITC Classic Finance Ltd. v. Grapco Mining and Co. Ltd. and Anr. : AIR1997Cal397 fully supports Mr. Sen's contention that an application under Section 8 not accompanied by the original arbitration agreement or by duly certified copy thereof, but only by a xerox of the agreement, is quite maintainable, The Supreme Court decision in Bharat Sewa Sansthan v. Uttar Pradesh Electronics Corporation Ltd. (2007) 7 SCC 737 also lends support to Mr. Sen's argument that photocopies of the agreement filed under Section 8 can be taken into consideration by the Court for ascertaining the existence of arbitration clause and referring the parties to arbitration. In para 24 of the report their Lordships said as follows:
The respondent Corporation placed on record of the trial Court photocopies of the agreements along with an application under Section 8(1) of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements could be taken on record under Section 8 of the Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant Sansthan against the respondent Corporation in terms of the arbitration clause contained in the lease agreement is arbitral.
7. It is to be noted that in Bharat Sewa Sansthan their Lordships of the Supreme Court were not examining the question whether an application under Section 8 not accompanied by the original arbitration agreement or a duly certified copy thereof, but by photocopies of the agreement, is entertainable. It is difficult to say whether the question was specifically raised before and examined by the High Court whose decision was questioned in the appeal in which their Lordships gave the decision saying that the High Court had rightly held that the photo copies of the lease agreement could be considered under Section 8 for ascertaining the existence of the arbitration clause.
8. The problem has arisen because of the subsequent decision of the Supreme Court in Atul Singh and Ors. v. Sunil Kumar Singh and Ors. : AIR2008SC1016 . In this decision, as will appear from para 13 of the report, it was specifically contended before their Lordships that the Section 8 application not accompanied by the original arbitration agreement or a duly certified copy thereof was not entertainable. Dealing with the contention their Lordships said (in para 19 of the report).
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. 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 8 of the Act, defendant 3 should have 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.
9. In the absence of the subsequent Supreme Court decision in Atul Singh there would have been no difficulty for me to accept Mr. Sen's contention that in view of what was said by the Supreme Court in Bharat Sewa Sansthan the Section 8 application not accompanied by the original arbitration agreement or a duly certified copy thereof, but only by a xerox thereof, is quite entertainable. As I have already said the question of compliance with the provisions of Section 8(2) was specifically raised before and examined by their Lordships of the Supreme Court in the subsequent decision in Atul Singh, and in that their Lordships specifically held that on the basis of the application that was not accompanied by the original arbitration agreement or a duly certified copy thereof, no order could have been passed in the suit referring the dispute to arbitration.
10. In my opinion, in the face of what was said by their Lordships in Atul Singh, there is absolutely no reason for me to entertain the argument that the application filed by the defendant can be entertained, or that the defendant can be permitted to produce the original of the arbitration agreement or a duly certified copy thereof by filing a supplementary affidavit. The mandatory provisions of Section 8(2) have not been complied with, and hence the application is just not entertainable. This does not mean that an appropriate application cannot be filed by the defendant. It is free to take out an appropriate application. This being the position, I am of the view that the other questions raised by the parties in the application should not be examined and decided.
11. For these reasons, the application is dismissed. There shall be no order for costs.
12. Urgent certified xerox copy of this judgment, if applied for, shall be supplied to the parties subject to compliance with all requisite formalities.