Judgment · High Court · 2010

Mr. R.B.Deshmukh, Adv., for the appellant. Mr. V.D.Rakh, AGP for respondent nos. 1 and 2. Mr. V.R.Sonwalkar, Adv., for respondent nos. 3 and 4. ... CORAM: K.U.CHANDIWAL, J. DATE: 8-2-2010 P.C.:-

#2. Heard. The order of return of plaint in terms of Order VII Rule (10) Civil Procedure Code, in Special Civil Suit No.251/1999, dt.

6.2.2009, recorded by the 4th Joint Civil Judge, Senior Division, Latur, is assailed by the plaintiff.

#2. There is no controversy between the parties that the contract had a stipulation of referring the dispute to the named arbitrator. This was indicated to the learned Judge in the response / written statement of 2 the defendant, the State and, consequently, the order of return of the plaint is recorded.

#3. The provisions of Section 8 of the Arbitration and Conciliation Act, 1996, conceive 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 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 an arbitration may be authority, commenced or continued and an arbitral award made. " In the light of above provision, it was, incidentally, a requirement by the State/defendant to make an application to the learned Judge to refer the matter to the arbitrator which the 3 defendant failed to comply. They chose to file their first statement raising such objection. This mistake on the part of the defendant, being vital in terms of Section 8, had its impact on the matter. It would amount even to submitting to the jurisdiction of the Civil Court, in terms of Section 9 of Civil Procedure Code. This has not been addressed by the learned Judge.

#3. The learned Judge directed return of the plaint, there could not be any such eventuality to return the plaint as it was not expected to be filed before any authority, this is particularly so in the light of the very agreement.

#4. Taking survey of all the events, the order under challenge is set aside. The matter is remitted to the learned Judge to reconsider in the light of settled legal position and pass appropriate order. Both the sides are at liberty to raise their 4 respective pleas.

#5. Parties to appear before the 4th Joint Civil Judge, Senior Division, Latur, on 9th March,

#2010. Appeal From Order (No. 61/2009) disposed of in above terms. (K.U.CHANDIWAL) JUDGE agp/61-09ao