IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 22034 of 2009(O) -------------------------- OS.52/2008 of MUNSIFF-MAGISTRATE COURT, PAYYOLI .................... PETITIONER(S): ------------------------- K.KUNHAMMED, S/O.MOIDU HAJEE, AGED 40 YEARS, KINARULLATHIL HOUSE, APPU BAZAAR, THIRUVALLOOR AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. MR.A.BALAGOPALAN, MR.A.RAJAGOPALAN, MR.IMTHIYAZ AHAMED, MR.K.SANEESH KUMAR. RESPONDENT(S): --------------------------- 1. AUTOMOTIVE MARKETING PRIVATE LTD., 39/405 A, KANNUR ROAD, PUTHIYANGADY P.O. KOZHIKODE, REPRESENTED BY ITS SALES MANAGER. 2. K.A.MOHAMMED FAIZAL, SALES EXECUTIVE, AUTOMOTIVE MARKETING PRIVATE LTD., 39/405 A, KANNUR ROAD, PUTHIYANGADY P.O. KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.22034 of 2009 - O --------------------------------- Dated this the 4th day of August, 2009 J U D G M E N T The writ petition is filed seeking the following reliefs: “i) To call for the records leading to Ext.P7 order, scrutinise the same and quash the same by the issuance of a writ in the nature of certiorari or any other appropriate writ, order or direction. ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the Munsiff-Magistrate Court, Payyoli to try and dispose of the suit O.S.No.52/2008 pending before that court.” 2. Petitioner is the plaintiff in O.S.No.52 of 2008 on the file of the Munsiff-Magistrate Court, Payyoli. Suit is one for recovery of money, and the respondents are the defendants. Initially the suit for a claim of Rs.3,23,600/- was filed before the Sub Court, Koilandi as O.S.No.32 of 2007, later on, by way of an amendment, valuation of the suit was reduced to Rs.88,705/- on which the plaint was returned for presentation before the proper court. Subsequently, returned plaint was presented before the Munsiff-Magistrate Court, Payyoli and numbered as O.S.No.52 of W.P.(C).No.22034 of 2009 - O 2 2008. The defendants appearing in the suit resisting the jurisdiction of the court contended that the agreement between the parties provided for reference to arbitration in the event of disputes, and that agreement was also produced. The learned Munsiff, after hearing both sides, finding that the agreement contained arbitration clause, passed Ext.P7 order referring the parties to arbitration under Section 8(1) of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the Act. 3. I heard the learned counsel for the petitioner/plaintiff. 4. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P7 order and other materials tendered with the petition, I find no notice to the respondent is necessary and it is dispensed with. 5. Learned counsel for the petitioner submitted that while the suit was pending before the Sub Court, Koilandi as O.S.No.32 of 2007, defendants participated in the proceedings, though they raised objections in their written statement that the agreement between the parties contained an arbitration clause. Substantial portion of the suit claim in the suit was also paid by the W.P.(C).No.22034 of 2009 - O 3 defendants and so much so the claim was reduced to below Rs.1 Lakh, leading to its re-presentation before the Munsiff-Magistrate Court. Whatever that be, once the plaint is returned for presentation before the proper court and it is so presented, it becomes a fresh suit. Further more, the question of jurisdiction is one touching the entertainability of the suit before the court. It is not disputed before me that the agreement between the parties contained an arbitration clause for resolving the disputes. When that be so, Section 5 of the Act interdicts a court from entertaining any dispute which has to be resolved through arbitration. So, I do not find any impropriety or illegality in the order passed by the court below that the disputes between the parties have to be resolved by arbitration. However, the observation made by the court as to the reference of the parties to the arbitration under Section 8(1) of the Act is not correct since that can be done only by the judicial authority and not by a civil court. What is a ‘judicial authority’, though not defined under the Act, has to be looked into with reference to Section 11 of the Act which gives a clear indication that even the court under W.P.(C).No.22034 of 2009 - O 4 Section 2(1)(e) of the Act will not come as a judicial authority as envisaged under Section 8 of the Act. The observations made in the order referring the parties to arbitration in the given facts of the case have no significance and it has to be ignored. All the same, I find the challenge against Ext.P7 order passed by the learned Munsiff in the writ petition must fail. The writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-