IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1614 of 2008 RAJ KUMAR SINGH Versus KRISHNA KUMAR SINGH ----------- 2 23/9/2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order referring the matter in dispute in the suit to the arbitrator, does not suffer from any jurisdictional error. It is mandate of law both under Arbitration and Conciliation Act and under section 89 of the Code of Civil Procedure that if the parties have agreed to get their matter settled by the mode of arbitration, the Court must refer the matter to the arbitrator in exclusion to any other remedy. In fact the court below has discussed this mater at great length and has taken into account the fact and law of the issue which can have no exception, muchless, to be interfered by this Court in exercise of power under section 115 of the Code of Civil Procedure. Mr. Satish Chandra Jha, counsel for the petitioner, however, would seriously 2 contend that as a matter of fact there is no arbitration agreement and the Punchnama being referred to is actually mode of conciliation and not of arbitration. In support of such contention counsel for the petitioner relied upon judgment of the Apex Court in the case of ‘K.K.Modi Vs. K.N.Modi & Ors’ reported in AIR 1998 SC 1297, which should be first looked into on the basis of law applied or ratio decided by the Apex Court. In this case it is the case of the petitioner himself before the court below in his application that “ it is true that both the parties have executed Panchnama on 17.9.1992 to settle dispute (to partition the family property described in the scheduled of the plaint)”. The agreement thus having been admitted, this Court would next look into as to what was agreed and since the agreement is on the record, it can be found therein that the parties had agreed to appoint arbitrator in the following word:- 3 ^^ izFke i{k ,oa f}rh; i{k cgSfl;r drkZ dkjksckjh vius&vius ifjokj ds eksfdj vyg iapx.k dks mijksDr Ógj ,oa xkWaoksa esa ys[;dkjhx.k dk la;qDr laifr dk caVokjk djus ds fy, fu;qDr djrs gSa rFkk iapx.k dks ;g vf/kdkj nsrs gSa fd ys[;dkjh izFke i{k ,oa f}rh; i{k ds chp tks Hkh la;qDr laifRr gS mldk caVokjk dj viuk iapkV ¼,okMZ½ nsa tks izFke i{k ,oa f}rh; i{k dks ekU; gksxk A ** From the above agreement it is clear that there was reference to only mode of conciliation and not the arbitration. That being so, there would be no applicability of the ratio of the aforementioned judgment in the case of K.K.Modi (Supra). In that view of the matter, there is no merit in this civil revision application and as such the same is dismissed with cost of Rs. 5,000/- to be realized from the petitioner. ( Mihir Kumar Jha, J.) Abhay Kumar