1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No. 404/2003 Shri Suraj N. Kamat, son of Shri Narendra G. Kamat, major, married, Proprietor of M/s. Suprabhat, having Office at First Floor, Visa Plaza, Bldg., near Hari Mandir, Margao, Goa. ……… Petitioner. V/s 1) M/s. Y.R. Builders Pvt. Ltd., a Company having its Office at 64, Sector – 17, Gurgaon – 122001. 2) Ms. Avishkar, Architects and Interior Designers, a Proprietary concern having its Office at TB-3, Baboi Commerce Centre, Near Hari Mandir, Margao, Goa 403 601, represented by its Proprietor Shri Sameer Nadkarni, major of age, married, residing at Margao, Goa. ……… Respondents. Mr. J.P. Mulgaonkar, Advocate for the petitioner. Ms. F. Mesquita, Advocate for respondent No.1. CORAM : P.B. MAJMUDAR, J. DATE : 30th January, 2009. ORAL JUDGMENT : 2 By this petition, the petitioner who is the original plaintiff in Special Civil Suit No. 62/99/B, has challenged the order passed by the learned Addl. Civil Judge, Senior Division, Margao dated 26.9.2000. By the impugned order, the learned Judge has allowed the application preferred by the respondents at Exhibits 6 and 7 of the suit and referred the parties to arbitration. The learned trial Judge, after considering the agreement dated 16.11.1996 and more particularly clause 11 of the said agreement has come to the conclusion that since there is an arbitration clause, the dispute is required to be referred to arbitration and accordingly passed the order referring the dispute to arbitration. 2. Mr. Mulgaonkar, the learned Counsel for the original plaintiff, petitioner herein, however, submitted that the order is passed on the application under Order 7, Rule 11 of C.P.C. and, therefore, the said application is for rejection of the plaint and the learned trial Judge should not have passed the impugned order on the application under Order 7, Rule 11 of C.P.C. Ms. Mesquita, the learned Counsel for respondent No.1, however, vehemently submitted that all ingredients of Section 8 of the Arbitration and Conciliation Act, 1996 are established and even if there is a mistake in citing a wrong provision of law, in substance, the order 3 can be construed as an order under Section 8 of the Arbitration and Conciliation Act, 1996. It is true that in a given case, if there is a wrong reference in mentioning the provision of law or section, that itself may not be treated as a ground for setting aside the order. However, so far as Section 8 of the Arbitration and Conciliation Act is concerned, it prescribes certain procedure before passing an order. 3. Since, it is not in dispute that no application under Section 8 of the Arbitration and Conciliation Act, 1996 was preferred by the defendant-respondent herein, the learned Counsel for the respondent fairly stated that she has no objection in case the matter is remanded to the trial Court for deciding it afresh, with liberty to file a proper application under Section 8 of the Arbitration and Conciliation Act. It is submitted by her that till today no written statement is filed by the defendant in the suit. Considering this aspect of the matter, with the consent of the respondent, the impugned order dated 26.9.2000 is set aside and the matter is sent back to the trial Court with liberty to the respondent/original defendant to submit an appropriate application under Section 8 of the Arbitration and Conciliation Act, 1996. If such an application is preferred by the defendant, the trial Court to decide the same, in accordance with law and 4 pass an appropriate order. Ultimately, if the application is allowed, naturally the parties will be required to be referred to arbitration. In case any adverse order is passed against the defendants on the application under Section 8, the learned trial Judge shall given sufficient time to the said defendant to file the written statement. However, it is clarified that this Court has not expressed any opinion on the merits of the matter in any manner and the learned trial Court, in case any application is filed by the defendant, shall decide the same as per Section 8 of the Arbitration and Conciliation Act, 1996. Subject to what is stated hereinabove, the impugned order is set aside. Petition disposed of accordingly. It is open to the parties to appear before the trial Court immediately. P.B. MAJMUDAR, J. Ssm.