1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.486 OF 2007 M/s Pantaloon Retailing (India) Pvt. Ltd. Mumbai, through its Br.Manager Shri Manish Gupta and anr. ..vs.. M/s Nari Shringar, Big Bazar, Nagpuir through its Pro.Shri Kumar Daga and anr. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- C ORAM : C.L.PANGARKAR, J. DATED : 29th September, 2009. 1. Heard Mr.S.V.Bhutada, learned counsel for the appellants and Shri Raju Dhoble, learned counsel for the respondents. 2. This second appeal is preferred against the order passed by the District Judge -11, whereby he confirmed an order passed by the Civil Judge, whereby the Civil Judge had rejected the contention of the defendants/appellants that civil court did not have the jurisdiction to entertain the suit. 2 3. The respondents/plaintiffs instituted a suit for declaration and injunction against the present appellants. The said suit was opposed by the present appellants. The present appellants appeared before the court and filed an application (Exh.18) along with the written statement in the suit. The appellants/defendants mainly contended that the plaint was liable to be rejected because of the fact that it did not disclose the cause of action, in as much as, the plaintiffs had not given the description of the property properly. The second ground that was raised by the defendants was that the court did not have jurisdiction to entertain the suit because the jurisdiction, according to the defendants, vested in the small causes Court. 4. The learned judge of the trial court rejected the plaint on the ground that the plaint did not describe the property properly by metes and bounds. The appellate court concurred with the findings and dismissed the appeal. 5. The plaintiffs, therefore, had approached this court in second appeal. The said second appeal has been allowed by this court and the order rejecting the plaint has been set aside. The appellate judge had also upheld the order of the trial court negativating 3 the contention of the defendants that the civil Court did not have jurisdiction to entertain the suit. The appellants/defendants feel aggrieved by such an order. 6. The learned counsel for the appellants submits that the learned judge of the trial court as well as the first appellate court had fallen in error in holding that the civil court did have jurisdiction. He submitted that although the application Exh.18 is not happily worded, it is essentially an application under Section 8 of the Arbitration Act and the Civil Judge or at least first appellate court should have referred the matter to the Arbitrator. It appears that the learned Judge of the trial court court as well as the first appellate court had rejected the application on the ground that the present appellants had submitted to the jurisdiction of the civil court when written statement was filed. The learned counsel for the appellants submits that in the instant case, it could not be said that the defendants had submitted to the jurisdiction of the civil court simply because the defendants had filed the written statement. He submits that the written statement as well as application (Exh.18) were filed on the same day and therefore, it could not be said that the defendants had submitted to the jurisdiction of the civil court. 4 7. The learned counsel for the appellants had laid stress on the words ‘not later than when submitting written statement’ as occurring in Section 8 of the Arbitration Act. It is very clear from the language of the Section 8 of the Act that if a party applies after filing of the written statement then the application under section 8 cannot be entertained. When both application as well as written statement are filed simultaneously, it could not be said that an application under Section 8 has been filed later than when submitting the written statement. I find much substance in the contention of the learned counsel for the appellants. 8. However, learned counsel for the respondents brings to my notice that the application made by the appellants is absolutely vague and there is no prayer whatsoever in the said application that the matter should be referred to the Arbitrator. 9. After having gone through the said application, it is clear that there is absolutely no prayer in the said application to refer the matter to the Arbitrator. In the absence of such a prayer it cannot be said that this was an application under Section 8 of the Arbitration Act. I would always say that a specific 5 prayer has to be made in the application if matter needs to be referred to Arbitrator and also a prayer as to who should be appointed as a Arbitrator in the matter. The application does not disclose that there was any intention of defendant to refer the matter to the Arbitrator nor does it say that any person should be appointed as an Arbitrator. 10. Mere statement in the application that there is an agreement that the matter needs to be referred is not enough. There must be an intention on the part of the appellants or the applicants making an application under Section 8 that the Civil Court should keep his hands off and matter should directly go to the Arbitrator. That intention is not obvious from the contents of the application and the prayer therein. 11. The learned counsel for the respondents next brought to my notice that the appellants/defendants in the written statement had contended that the agreement of 2004 has been superseded by an agreement of 2005. Sub section 2 of Section 8 of the Arbitration Act contemplates that whenever a party wants to resort to the provisions of Section 8, such an application under Section 8 must be accompanied by a copy of the agreement of Arbitration. Obviously, 6 the appellants/defendants have not filed the copy of the arbitration agreement of the year 2005. In view of this also, the application under Section 8 was not maintainable. I do not find that the courts below have committed any error in rejecting the contentions as made in the application and not referring the matter to the Arbitrator. No other point was urged. There is no substance in the second appeal. Same is dismissed in limine. JUDGE. chute