jpc cra689-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 689 OF 2011 Cethar Vessels Limited ... Applicant Versus Shri Vighnahar Sahakari Sakhar Karkhana Ltd. ... Respondent Mr. R. D.Soni a/w Mrs. Trupti J. Gohil for the applicant Mr. Vijay Patil aw Mr. Nitin Dhumal for the respondent CORAM: R. M. SAVANT, J. DATED : 11th November, 2011 P.C. : 1. Rule with the consent as the parties made returnable forthwith and heard 2. The above Civil Revision Application has been filed challenging the order dated 12th August, 2011, by which order, application Exh.16 filed in Spl. Civil Suit No. 1863 of 2010 for referring the dispute in question to arbitration has been rejected by the 7th Joint Civil Judge, Senior Division, Pune. In fact, the said order dated 12th August, 2011 is a composite order passed on Application Exh.16 and Application Exh.18 which was filed under Section 9A of the Code of Civil Procedure. jpc cra689-11.sxw 2 3. Without burdening this order with unnecessary facts, suffice it to say that the said application Exh.16 has been rejected on the ground that the applicant, who is the defendant in the said suit, has filed the said application after it has filed written statement on 5th April, 2011. In view thereof, the provisions of Section 8 of the Arbitration and Conciliation Act, 1996 ( in short 'Arbitration Act'), in so far as referring the dispute to arbitration have not been satisfied, as the application for referring the dispute to arbitration has to be filed, at the first appearance, prior to the filing of the written statement. 4. Mr. Soni, learned counsel appearing for the applicant herein, placed reliance on the Roznama which is annexed to the above revision application at Exh.C. The learned counsel draws my attention to the Roznama dated 6th April, 2011, which discloses that on the said date written statement was filed at Exh.13 and an application under Section 8 of the Arbitration Act i.e. Application Exh.16 was also filed on the same day. The learned Advocate for the applicant would, therefore, contend that there is factual error committed by the trial Court, in so far as mentioning of the date 5th April, 2011 as filing of the written statement is concerned, when in fact the written statement Exh.16 has been filled on the same day i.e. on 6th April, 2011. Once that be so, jpc cra689-11.sxw 3 in my view, rejection of application Exh.16 filed by the applicant -original defendant on the said ground cannot be sustained, and therefore, to that extent, the order passed on Exh.16 would have to be quashed and set aside and is accordingly quashed and set aside. 5. A useful reference could now be made to the judgment of the Apex Court in the case of Booz Allen And Hamilton Inc. Vs. SBI Home Finance Ltd. & others, reported in 2001 (5) Mh.L.J. 2011. In the said judgment, the Apex Court has laid down the basis/tests which a party would have to satisfy and in respect of which the Court would have to record findings before referring the matter to arbitration under section 8; the tests which have been laid down are as follows: "(i) Whether there is an arbitration agreement among the parties; (ii) whether all the parties to the suit are parties to the arbitration agreement; (iii) whether the disputes which are the subject-matter of the suit fall within the scope of arbitration agreement; (iv) whether the defendant had applied under section 8 of the Act before submitting his first statement on the substance of jpc cra689-11.sxw 4 the dispute; and (v) whether the reliefs sought in the suit are those that can be adjudicated and granted in an arbitration. But where the issue of "arbitrability" arises in the context of an application under section 8 of the Act in a pending suit, all aspects of arbitrability will have to be decided by the Court seized of the suit, and cannot be left to the decision of the arbitrator." 6. Since an issue is sought to be raised by the original plaintiff as regards 'arbitrability of the dispute in question which is the subject- matter of the suit, the Trial Court, whilst considering the said application Exh.16, on its remand, would have to record findings in terms of the judgment of the Apex Court in Booz Allen and Hamilton Inc (supra). 7. In view of the above, the above Civil Revision Application is allowed. The impugned order dated 12th August, 2011 to the extent of Application Exh.16 is set aside and the matter is remanded to the trial Court for de-novo consideration only on the aspect, whether the dispute in question is arbitrable and whether the tests laid down by the Apex Court in Booz Allen And Hamilton Inc.(supra) are satisfied in the instant case.. jpc cra689-11.sxw 5 8. The trial Court to decide Exh.16, on its remand, within a period of 8 weeks from 25th November, 2011. The parties to appear before the trial Court on 25th November, 2011 which date has already been notified by the trial Court. 9. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. (R. M. SAVANT, J.)