CRP No. 359 of 2008 · Kerala High Court

M. SASIDHARAN NAMBIAR, J.------------------------------------------C.R.P.No. 359 of 2008------------------------------------------Dated this the 3rd day of June, 2008ORDERPetitioner is the 2nd defendant in O.S. 2960 of 2007 on thefile of Additional Munsiff, Thrissur. Respondent is the plaintiff. Suit was instituted against the petitioner as 2nd defendant and Kerala Transport Development Finance Corporation as firstdefendant seeking a decree for mandatory injunction directingdefendants to hand over the stage carriage bus seized from therespondent holding that the seizure is invalid and illegal. Petitioner filed IA 11051 of 2007 for referring the dispute to the Arbitrator as provided under Annexure-2 agreement. Petitionercontended that an agreement was entered into between therespondent and M/s. Shriram Investments Ltd. on 20.12.2005which contains an arbitration clause and subsequently as perthe decision of High Court of Madras, assets of the ShriramInvestments Ltd. now vests with the petitioner and as there isan arbitration clause in Annexure-2 agreement. Suit is to bereferred to the arbitrator and civil court has no jurisdiction. The learned Munsiff as per order dated 19.12.2007 dismissed CRP 359/082the petition holding that there are two defendants and only onedefendant has filed the petition and there is dispute regarding theexecution of the document and therefore suit cannot be referred tothe arbitrator. The order is challenged in this petition.

Learned counsel appearing for the petitioner and therespondent were heard.

Sub-section 1 of Section 8 of Arbitration and ConciliationAct, 1996 provides that a judicial authority before which an action isprayed in a matter which is subject to an arbitration agreement shall, if all parties so applied not later than when submitting his writtenstatement on the substance of the dispute has to refer the parties toarbitration. It is essential that there should be an agreement betweenthe parties providing for arbitration. Sub-section 2 of Section 8mandates that the application shall not be entertained unless it isaccompanied by the original arbitration agreement or a duly certifiedcopy thereof. The argument of the learned counsel appearing forpetitioner is that as held by the Apex court in Atul Singh & Ors. v.Sunil Kumar Singh & Ors. (2008 SAR (Civil) 272) once anapplication is filed under Sub-section 1 of Section 8 accompanied bythe original agreement or a duly certified copy thereof before court isbound to refer the dispute to the Arbitrator.

Impugned order passed by the learned Munsiff shows that CRP 359/083the learned Munsiff did not consider the application in the properperspective. Though petition was filed by second defendant it is thesame counsel who was appearing for the first defendant also. Seconddefendant contended that an agreement was entered into between theplaintiff and Shriram Investments, the rights of which now vests with2nd defendant on 20.10.2005 and the said agreement contains anarbitration clause. The learned Munsiff did not consider whether theagreement was executed by the plaintiff and Shriram Investments andwhether the agreement contains an arbitration clause and whetherthe mandate provides under Section 8(1) is satisfied or not. In suchcircumstances, the order dated 19.12.2007 is set aside. LearnedMunsiff is directed to reconsider IA 11051 of 2007 afresh afterhearing the parties and pass appropriate order in accordance withlaw. M. SASIDHARAN NAMBIAR, JUDGEOkb/-