1 WP 6125.2009 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6125 OF 2009 Sureshchandra Layyeram Goyal Age : 56 Yrs., Occ. Business, R/o : Station road, Parbhani, Prem Ganga Sadan, behind Satkar Lodge, Parbhani. ....PETITIONER V E R S U S M/s Growwell Investment situate at Nanded, Registered Partnership firm through its partners : 1. Ajit S/o Govindrao Jillewar Age : Major, Occ. Business, R/o : Vazirabad, Nanded. 2. Animesh S/o Pratap Dharmasi Age : Major, Occ. Business, R/o : Nanded. .... RESPONDENTS Mr. S.V.Kurundkar, Advocate for the Petitioner. Mr. Vivek Bhavthankar, Advocate for Respondent no. 3. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 20/07/2011 2 WP 6125.2009 - [ J ] ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The petitioner is the original defendant. The respondent had filed Suit for recovery against the present petitioner. The petitioner filed Written Statement. Thereafter, the petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure [ For short, ‘ the Code ’ ] on two ( 2 ) counts : (1) the Court at Nanded does not have territorial jurisdiction to try and entertain the Suit and ( 2 ) in view of the clause of arbitration, the matter is required to be referred to the arbitrator. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 4. Mr. Kurundkar, the learned counsel for the petitioner submits that the Court at Nanded inherently lack the jurisdiction. As such, even by the clause in the agreement, the same would not bestow jurisdiction to the Court. More over, there is a clause of arbitration in the said agreement itself. In such circumstances, when there is a clause of arbitration, the Civil Court at Nanded can not exercise jurisdiction. According to the learned 3 WP 6125.2009 - [ J ] counsel, this aspect has not been considered by the Court in its correct perspective. The learned counsel further contends that the observation of the trial court that even if the clause of arbitration is there, it is the choice of the plaintiff whether to file the Suit or to refer the matter to the arbitration, is erroneous and against the provisions of law. 5. Mr. Bhavthankar, the learned counsel for the plaintiff supports the order and submits that the Written Statement was already filed on record and thereafter the present application is filed. Even as per Section 8 of the Arbitration and Conciliation Act [ For short, ‘ said Act ’ ], the application for referring the matter to the arbitration was not maintainable after filing of the Written Statement. 6. With the assistance of the learned counsel for the respective parties, I have gone through the application and the impugned order. 7. From the perusal of the order, it is manifest that there is a clause for referring the matter to the arbitration. If that is the fact, then the petitioner should have moved the Court at the earliest i.e. first day of hearing as is contemplated U/s 8 of the said Act. The same has not been done nor it transpires that the original arbitration agreement was placed 4 WP 6125.2009 - [ J ] before the Court. 8. In light of the above observations, the application filed by the petitioner under Order VII Rule 11 of the Code could not have been entertained and the same has been properly rejected though the reasons may not be proper. 9. In the result, there is no merit in the Writ Petition. The Writ Petition as such is dismissed. No costs. 10. The dismissal of the Writ Petition will not preclude the petitioner from resorting to the provisions of the Arbitration Act, if so advised. 11. In view of dismissal of Writ Petition, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/WP 6125.2009 - [ J ]