: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.663 OF 2009 Vasanti Tukaram Gharat & Ors. .. Applicants V/s. Purshottam Omprakash Agarwal & Ors. .. Respondents Mr. Rajendra R. Mishra for the Applicants. Mr. Sunil I. Jayakar with Mr. Divesh Chamboowala i/b. Mr. Miheer S. Jayakar for Respondent No.1. CORAM : SMT. NISHITA MHATRE, J. DATED : 24 TH FEBRUARY, 2010. P.C.: 1. The Civil Revision Application has been preferred against the order dated 5th September, 2009, passed by the Civil Judge, Senior Division, Panvel, below Exhibits “20” and “34” in Special Civil Suit No.417 of 2008. The trial Court has refused to refer the dispute between the parties for arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (for short “the Act”). 2. The plaintiff, i.e. respondent No.1, has filed a Suit against defendant Nos.1 to 7, the applicants herein, and certain officers of the CIDCO. The : 2 : plaintiff has sought specific performance of the contract between himself and defendant Nos.1 to 7. He also claims certain other reliefs against the other defendants. An application was filed by defendant Nos.1 to 7, i.e. the applicants herein, for dismissal of the Suit on the ground that the Civil Court had no jurisdiction in view of the provisions of the agreement dated 4th February, 2008, executed by them and the plaintiff. They contended that the agreement contained a clause for arbitration and therefore the Suit was not maintainable and ought to be dismissed. Another application was filed by defendant Nos.1 to 7 for vacating the order of status-quo granted by the trial Court. 3. Both these applications have been decided by the trial Court by a common order which is the order impugned in the present Revision Application. The trial Court has referred to various Judgments including the judgment of the Supreme Court in the case of Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya & Anr., reported in AIR 2003 Supreme Court 2252. It has held that since reliefs were claimed : 3 : against some defendants who were parties to the agreement and others who were not, the lis between the parties could not be referred to arbitration. 4. The main contention of the learned Advocate for the applicants is that the Clause 16 of the agreement between the plaintiff on the one hand and themselves on the other provides for arbitration. He, therefore, submits that the trial Court ought to have referred the Suit for arbitration in view of the provisions of Section 8 of the Act. 5. The learned Advocate for respondent No.1- plaintiff submits that the applications filed by the defendant Nos.1 to 7 were not filed under Section 8 of the Act. He points out that by the application, the defendant Nos.1 to 7 had sought dismissal of the Suit for want of jurisdiction. According to the learned Advocate, the trial Court has rightly dismissed the applications filed by defendant Nos.1 to 7, since all the defendants are not parties to the Arbitration Agreement. 6. In the case of Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya & Anr., reported in AIR 2003 : 4 : Supreme Court 2252, the Supreme Court has held that where the parties, who are not parties to the arbitration agreement, are arrayed as defendants in a Civil Suit, an arbitration would not be valid. Bifurcation of the cause of action is not permissible in such a case. The Supreme Court has observed thus in paragraph Nos.15, 16 and 17 of the judgment, which read as under : “15.The relevant language used in S. 8 is - “in a matter which is the subject matter of an arbitration agreement.” Court is required to refer the parties to arbitration. Therefore the suit should be in respect of “a matter” which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced - “as to a matter” which lies outside the arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no question of application of S. 8. The words ‘a matter’ indicates entire subject matter of the suit should be subject to arbitration agreement. 16. The next question which requires consideration is – even if there is no provision for partly referring the dispute to arbitration, whether such a course is possible under Section 8 of the : 5 : Act? In our view, it would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matter of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language, it follows that bifurcation of the subject matter of an action brought before a judicial authority is ot allowed. 17. Secondly, such bifurcation of suit in two parts, one to be decided by the arbitral tribunal and other to be decided by the civil Court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parties and on occasions there is possibility of conflicting judgments and orders by two different forums.” 7. In the case of Mandabai Ananta @ Vaman Katkari vs. Rajesh Madhavi & Ors. in Civil Revision Application No.86 of 2007, a learned Single Judge : 6 : of this Court was concerned with the facts which are similar to the facts involved in the present case. By relying on the judgment in the case of Sukanya Holdings Pvt. Ltd. vs. Jayesh H. Pandya & Anr., the learned Single Judge has held that since all the parties to the Suit were not parties to the arbitration agreement, the arbitration clause could be invoked. 8. Even assuming the arbitration clause could be invoked under Section 8 of the Act, the Supreme Court in the case of Branch Manager, M/s. Magma Leasing & Finance Ltd. & Anr. vs. Potluri Madhavilata & Anr., reported in AIR 2010 Supreme Court 488, has taken the view that there must be compliance with the pre-requisites of Section 8 of the Arbitration & Conciliation Act, while invoking the arbitration clause. This includes the condition that application must be accompanied by the original arbitration agreement or a duly certified copy thereof. 9. In the present case, undoubtedly, the applications tendered by the applicants before the : 7 : trial Court were not submitted with either the original arbitration agreement or a copy duly certified. Therefore, the pre-requisites of Section 8 of the Arbitration & Conciliation Act have not been adhered to. A similar view was taken by the Supreme Court in the case of Atul Singh & Ors. vs. Sunil Kumar Singh & Ors., reported in (2008) 2 SCC 602. 10. The frame of the Suit indicates that the reliefs sought are not merely against defendant Nos.1 to 7, but also against CIDCO. Undoubtedly, CIDCO is not a party to the arbitration agreement. Therefore, in my opinion, the trial Court has committed no error in dismissing the applications. 11. The Civil Revision Application is dismissed. 12. The learned Advocate for the applicants seeks a stay of the proceedings before the trial Court. In my view, there is no need to grant a stay in view of the aforesaid Judgments of the Supreme Court.