IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 718 of 2010(O) ------------------------ OS.989/2009 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER: --------------- SATHEESH MENON, AGED 48 YEARS S/O.LAKSHMI AMMA, MAMPILLI KALATHIL HOUSE RESIDING AT HOUSE NO 28/198 ,'MAHALAKSHMI' SHORNUR ROAD, PATTURACKAL, THRISSUR. BY ADV. MR.M.B.PRAJITH RESPONDENTS: --------------- 1. C.MUKUNDEN MENON, AGED 57 YEARS COMPANY EXECUTIVE,S/O.LATE CHANDRASEKHARAN RESIDING AT SANKAR VIHAR, GANDHI JUNCTION KATTUSSERY DESOM, ALATHUR VILLAGE,ALATHUR TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER P.K.BALACHANDRAN. 2. K.RAVISANKAR AGED 51 YEARS COMPANY EXECUTIVE, S/O.LATE VIJAYAN NAIR RESIDING AT KUNNATH HOUSE, PARUTHIPILLY DESOM PERINGOTTUKURISI VILLAGE, ALATHUR TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER P.K.BALACHANDRAN. 3. P.K.BALACHANDRAN, AGED 48 YEARS,BUSINESS S/O.LATE KESAVAN NAIR, RESIDING AT PADIKKALVEETIL HOUSE, KUMARAPPANAL DESOM, VARAVOOR VILLAGE, THALAPPILLY TALUK, THRISSUR. ADV. MR.BINOY VASUDEVAN FOR R1 TO R3 MS.P.G.BABITHA FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.718 of 2010 - O --------------------------------- Dated this the 13th day of January, 2010 J U D G M E N T Petitioner is the defendant in O.S.No.989 of 2009 on the file of the Additional Sub Court, Thrissur. Suit is one for settlement of accounts and the respondents are the plaintiffs. Parties involved in the suit are stated to be the erstwhile parties of a firm which is stated to have dissolved. Resisting the maintainability of the suit before the Sub Court, petitioner/defendant contended that there is an agreement providing for arbitration in the event of disputes between the partners of the firm. An application was also moved seeking reference of the disputes to arbitration as provided under Section 8 of the Arbitration and Conciliation Act, hereinafter referred to as 'the Act'. The court below without considering that application proceeded to appoint an advocate commissioner to conduct a local inspection and file a report on the application moved by the plaintiffs/respondents, is the grievance espoused in the writ petition invoking the supervisory jurisdiction for issuing a direction to the court below for W.P.(C).No.718 of 2010 - O 2 considering the application moved under Section 8 of the Arbitration Act, expeditiously. 2. Notice given, respondents have entered appearance through counsel. I heard the counsel on both sides. 3. There is no dispute that the partnership deed contain an arbitration clause enabling the parties to resolve the disputes through arbitration. It is also seen that the petitioner/defendant has moved an application for reference to arbitration before delivering of his defence as contemplated under Section 8 of the Arbitration Act. When that be the case it was incumbent upon the court to consider and dispose the application before taking any further step in trial of the suit. The apex court in Hindustan Petroleum Corporation Ltd. v. Pinckcity Midway Petroleums (2000(3) KHC 1492) has held in unmistakable terms that if there is an arbitration clause in the agreement between the parties to resolve the disputes it is mandatory for the civil court to refer the dispute to arbitration. It has been further held, once an application under Section 8 of the Arbitration Act has been filed, civil court has no jurisdiction to continue with the suit. That being the settled position of law as laid down by the apex W.P.(C).No.718 of 2010 - O 3 court which is enshrined under Sections 5 and 8 of the Arbitration Act the court below went wrong in continuing with the suit further for disposing the suit without considering the application filed under Section 8 of the Arbitration Act. There will be a direction to the court below to dispose of Ext.P6 application of the petitioner/defendant after hearing both sides taking note of the observations made above and in accordance with law, as expeditiously as possible, at any rate, within a period of one month from the date of receipt/production of a copy of this judgment. The court below is also directed to pass orders keeping in abeyance execution of the commission order issued in the above suit, and it shall be proceeded only subject to the result of Ext.P6 application. Writ petition is disposed of as above. Hand over a copy of the judgment to the counsel on both sides on usual terms, forthwith. S.S.SATHEESACHANDRAN, JUDGE. bkn/-