1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.717 OF 2008 Shree Laxmi Enterprises .... Petitioner Vs. The Principal General Manager, .... Respondent BSNL, Pune Telecom & Another Mr. Uday P. Warunjikar, Advocate for the Petitioner. Smt.Neeta V. Masurkar, Advocate for respondent. Coram : SMT. R.P. SONDURBALDOTA,J Date : 13 th August, 2008 P.C. 1. This Writ Petition is preferred to challenge the order dated 2nd July,2007 passed by the learned trial Court allowing an application made under Section 8 of The Arbitration and Conciliation Act, 1996. The facts leading to the petition are as follows : 2. The petitioner is a recognised contractor doing the job of laying cables. The respondent had accepted two of his tenders on 14/6/2002 and 15/7/2002 and executed agreements on the respective dates. He completed the work under the tenders and submitted his bills for payment. The concerned authority of the respondent approved the bills and forwarded the same as per 2 the procedure to the Accounts Officer (Works) for the purpose of making payments. However, no payment was made to the petitioner. After several reminders, the petitioner sent legal notice dated 30th June, 2006. The respondent failed and neglected to reply the notice. Therefore, the petitioner was constrained to file a Summary Suit on 2nd September, 2004 for recovery of the amount due to him. 3. After service of the writ of summons, the respondent entered appearance on 29th October, 2006. Six months thereafter, the respondent filed application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Arbitration Act') contending that the agreement executed with the petitioner contains a clause for appointment of Arbitrator for resolving any disputes or differences arising under the agreement between the parties. The said application was opposed by the petitioner by filing his affidavit-in-reply. By the order impugned in the present petition, the application was granted and the parties were referred to arbitration. 4. The petitioner challenges the impugned order on two grounds, firstly that, it was incumbent upon the respondent to file either original or certified copy of the arbitration agreement alongwith the application under Section 8 of the Arbitration Act. Since the application was not so accompanied by the 3 certified copy, the same ought not to have been considered and granted by the trial court. Secondly, that there is no dispute or difference arising under the agreement between the parties which could be referred to arbitration. 5. Mr.Warunjikar, the learned counsel for the petitioner, submits that Section 8(2) of the Arbitration Act is a mandatory provision. It states that the application to refer parties to the arbitration shall not be entertained, unless, it is accompanied by the original arbitration agreement or a duly certified copy thereof. Since the mandatory provision is not satisfied, the application ought to have been rejected. Mrs.Masurkar, learned counsel for the respondent, submits in reply that the agreement containing the arbitration clause has been produced by the petitioner himself as an Annexure to the plaint filed by him. Therefore, there was no need to file the original agreement or a certified copy thereof alongwith the application under Section 8. The language of the provision of Section 8(2)is mandatory is nature. It states that the application shall not be entertained, unless, original arbitration agreement or its certified copy is annexed thereto. There is no concession provided therefrom in the section. Therefore, even if there was no dispute as regards the agreement containing the arbitration clause and even if a xerox copy of the same is annexed to the plaint, the requirement of Section 8 of the Arbitration Act, does not stand satisfied. The said provision requires the original agreement or its certified copy to 4 accompany the application before the court. Therefore, I find substance in the contention of the petitioner that since the original agreement or its certified copy was not filed alongwith the application to refer parties to the arbitration, the same could not have been entertained by the trial court. 6. The second contention of the petitioner, is that there was no dispute or difference between the parties which could be referred to an Arbitrator for decision. Mr.Warunjikar, draws attention of the court to Clause 33 of the Agreement which reads as follows :- 33. Arbitration : In the event of any question, dispute or difference arising under this agreement or in connection there with (except as to matters the decision of which is specifically provided under this agreement) the same shall referred to sole arbitration of the PGM BSNL, PUNE or in case his designation is changed or office abolished, then in such case to the sole arbitration of the officer entrusted with the function of head BSNL, PUNE by whatever designation such officer may be called (hereinafter referred to as the said officer) and if the PGM or the said officer is unable or unwilling to act, as such to the sole arbitration of some other person appointed by the PGM or the said officer. . There will be no objection to any such appointment that the arbitrator is Govt.servant he has to deal with the matter to which the agreement relates or that in the course of his duties, the government servant has expressed views, on all or any of the matters under dispute. The award of the arbitrator shall be final and binding on the parties. In the event of such arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason whatsoever, such PGM or the said officer shall appoint another person to act as arbitrator in accordance with the terms of the agreement and the person so appointed shall be entitled to proceed with reference from the 5 stage at which it was left out by his predecessors. . The Arbitrator may from time to time with the consent of the parties enlarge the time for making and publishing the award. Subject to the aforesaid, The Arbitration and Reconciliation Act, 1996 and the rules made thereunder, any modification thereof for time being in force, shall be deemed to apply to the arbitration proceedings under this clause. . The venue of the arbitration proceedings shall be decided by the arbitrator. . Upon every reference and any reference as aforesaid, the assessment of costs of incidental expenses in the proceeding for the Award shall be in the jurisdiction of the arbitrator. 7. As per this Clause, any question or dispute or difference arising under the agreement or in connection therewith, the same shall be referred to the arbitration. Mr.Warunjikar, submits that no dispute has been raised at any time nor has there has been any difference as regards the work undertaken by the petitioner under the agreement. There has not been any complaint as regards the quality of the work or the extent of the work carried out by the petitioner. The bills for payment submitted by the petitioner have been passed by the concerned authorities and the Accounts Department was to only do the ministerial act of making payments of the bills passed. Mrs.Masurkar, on the other hand, submits that part of the payment has already been made to the petitioner and there is a dispute as regards the balance portion of it. The dispute is that the work carried out by the petitioner is beyond the sanctioned work unit of the concerned officer. Neither the application under Section 8 of the Arbitration Act, nor, the first reply filed by the respondent to the present 6 petition contained even so much as a reference to any part payment made to the petitioner. Therefore, the respondent was directed to file additional affidavit stating the particulars. As the particulars were not properly given in the first additional affidavit-in-reply, the respondent was permitted to file the second additional affidavit-in-reply to the petition. The second additional affidavit is accompanied by the list of payments made to the petitioner. Perusal of the same shows that all the payments made by the respondent to the petitioner, have been of the dates subsequent to filing of the suit. The instant suit was filed on 2nd September, 2004. There is not a single payment made by the respondent prior to this date. The list shows that one small payment was made on the date on which the suit was filed and thereafter some payments have been made from time to time till the month of December, 2005. Thus, it is seen that as on the date of filing of the suit, there was no payment whatsoever made to the petitioner. Hence it cannot be said that on the date of the suit there was any dispute of difference as alleged by the respondents. 8. In the additional affidavit-in-reply, the respondent contends that the work carried out by the petitioner exceeds the work units alloted in the tender to the particular unit officer. As per the second additional affidavit-in- reply, the work units alloted to DGM(East)-MHS, Yerwada, Canntt, HDP/Gadital and DGM(CHD)-Bhosari/Wakad, CHD-I & CHD-II, the officers of the respondent are said to have been exceeded. This was objected to by the 7 Accounts Officer. If some officer has exceeded his limit of work units, it cannot be said that there is any difference or dispute arising under the agreement between the petitioner and the respondent. The dispute, if any, is inter-se the officers of the respondents. Since, neither the quality nor the quantity of the work carried out by the petitioner is in dispute, it cannot be said that there is any dispute or difference between the parties for the purpose of reference to an arbitrator. Therefore the reference to the Arbitrator was wholly unnecessary. It appears that the learned trial Judge has not applied his mind to this aspect of the matter, which was raised in the reply filed by the petitioner. Therefore, the impugned order cannot be sustained. 9. The writ petition is allowed. The impugned order dated 2nd July, 2007 is set aside. [Smt.R.P.SondurBaldota,J] 8 9