1 ao648.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 648 of 2011 WITH Civil Application No. 877 of 2011 IN AO No. 648 of 2011 Arvind Anant Pawaskar ....Appellant v/s. Vijay Dattaram Phadnis ....Respondent Mr. Avinash Fatangare for the appellant. Mr. N.V. Bandiwadekar for the respondent. CORAM: R.M. BORDE, J. 23rd November, 2011 PC: The order passed below exhibit 23 in Special Civil Suit No. 6/2011 directing return of plaint to the plaintiff for proper presentation, is subject matter of challenge in this Appeal from Order. The appellant-original plaintiff instituted suit claiming damages to the tune of Rs. 2,10,000/- on account of breach of terms of agreement by the defendant. The plaintiff also prays for a direction to the defendant to stop the construction work initiated by him on the suit property. A declaration is sought in respect of cancellation of development agreement and power of attorney executed on 11th May, 1989 between the parties. After presentation of the plaint and after causing appearance on the very first day of proceedings, the defendant tendered an application to the Court pointing out the existence of arbitration clause in the agreement and requested the Court to return the plaint for proper presentation to the plaintiff. 2. The application tendered by the defendant seeking return of plaint to the 2 ao648.11.sxw plaintiff has been allowed by the trial Court. It is not disputed by the parties that there exists an arbitration clause in the agreement arrived at between the parties on 11th May, 1989. In view of existence of arbitration clause it was open for the defendant to tender an application as contemplated under Section 8 of the Arbitration and Conciliation Act, 1996. Section 8 of the Arbitration Act reads thus:- “8. Power to refer parties to arbitration where there is an arbitration agreement.-- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been mad under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.” 3. The defendant, however, instead of tendering an application as contemplated under Section 8 of the Act has tendered an application seeking return of plaint as contemplated by Order VII Rule 10 of CPC. Rule 10 of Order VII of CPC reads thus:- “ 10. Return of plaint.--- (1) [Subject to the provisions of rule 10-A, the plaint shall] at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. [Explanation.-- For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint, under this sub-rule.] (2) Procedure on returning plaint.-- On returning a 3 ao648.11.sxw plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.” 4. In the instant matter the return of plaint obviously cannot be with a view to present the plaint to the Court. The defendant has pleaded existence of Arbitration Agreement and obviously in view of provisions of Arbitration and Conciliation Act, if party makes a request, the matter can be referred to Arbitration in accordance with Section 8 of the Act. Arbitrator to be appointed under the provisions of Act of 1996 is not a Court. Therefore, the provisions of Order VII Rule 10 are not attracted in the instant matter. The application tendered by the defendant seeking return of plaint is misconceived and ought not to have been allowed by the trial Court. The Act of 1996 provides for making reference of matter to the Arbitrator if the party makes a suitable request before submitting his statement on the subsisting dispute. The application tendered by the defendant is not within contemplation of Section 8 of the Act. Merely because there is existence of arbitration clause does not mean that suit presented by the plaintiff is not entertainable. If at all the defendants want the matter to be referred to the arbitrator, he has to take out an application as contemplated under Section 8 of the Act. The trial Court has made a reference to definition of Code mentioned in Section 2(e) of the Act and has recorded that the Principal Civil Court of original jurisdiction in a District for the purpose of presenting suit is the proper forum. However, the Court referred to in Section 2(e) of the Act is for the purpose of referring the matter for presenting the appeals or applications as contemplated by provisions of Act of 1996. The suit presented by the plaintiff was obviously not required to be presented to the District Court. The trial Court considering the provisions of Section 2(e) of the Act issued an erroneous direction for return of plaint for proper presentation to the Court i.e. District Court. The application presented by the defendant is not within contemplation of Section 8 of the Act nor can be 4 ao648.11.sxw considered under Order VII Rule 10 of Civil Procedure Code. The order passed by the trial Court is erroneous and liable to be quashed and set aside. It would be open for the defendants to tender an application as contemplated by Section 8 of the Act of 1996 and the Court may consider the same strictly in accordance with law. 5. The Appeal from Order is thus allowed. The order passed below exhibit 23 is Special Civil Suit No. 6/2011 dated 31st March, 2011 is quashed and set aside. In the facts and circumstances of the case there shall be no order as to costs. (R.M.BORDE, J)