C'i.^^s IN THE HON'BLE HIGH COURT OF C.G. AT BILASPUR Civil Revision No. I €>6 of 2010 ... ^»PLICANT/ v< ..!y^^- •ft.o, -^. ^Hiinalaya Coramercial Complex Private Limited, Supela Bhilai, District-Durg (C.G.) through Chairman- Santosh Golchha, S/o Late Shri K.C. Golchha, aged about 54 years, R/o Usha Kiran MaLviya Nagar, Durg, Dista-ict- Durg (C.G.) VERSUS SF6N-AJPPLICANT/ ^Meharban Singh, S/o Shri ^•Plauitiff . Darshan Singh, aged about 40 rears, R/o Quarter No. 22, Sindhi Colony, Raipur Naka, Durg, Tahsil 8s District-Durg (C.G.) CIVIL REVISION UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE HIGH COURT OF CHHATTISGARH AT BIUUSPUR CivURevisionNo. 106/2010 APPLICANT Himalaya Commercial Complex Private Limited Versus NON-APPLICANT Meharban Singh 8B:- HON'BLE SHRI N.K. AGARWAL. J PRESENT:- Shri Prateek Sharuia, Advocate, for the applicant. Shri P.R. Patankar, Advocate for the non-applicant. ORAL ORDER (15-4-2011) 1. Instant revision caUs in question the legality and propriety of the order dated 16-9-2010 whereby applicant's application under Section 8 of the Arbitration and Conciliation Act, 1996 (briefly, the Acf) has been dismissed by the trial Court on the ground, same has been filed after submitting his first statement on the substance ofthedispute. 2. Shri Prateek Sharma, leamed counsel for the applicaat would submit, the applicant has not submitted his first statement on fhe substance of the dispute. The reply to temporary injunction tfread as a whole would not suggest that fhe applicant has submitted his first statement on the substance of the dispute and, therefore, the trial Coiirt- has Ulegally dismissed applicant's application. 3. On. the ofher hand, SIiri Pataakar, leamed counsel appearmg for the non-applicant's main contention is, the application filed by the applicant under Section 8 of the Act was not accompanied by original arbitration agreement or duly certffied copy thereof. The above condition is mandatory and in the absence of copy agreeinent, the application itself was not maintaiiiable and >*^> ^-f. 6. therefore, leamed trial Court has rightly dismissed th^- above application. I have heard leamed counsel for fhe parties and perused the order iinpugned. Section 8 ofthe Act reads fhus:- "S. Power to refer parties to cuWtreition where there is an arbitroctton cigreement (1) A judicial authority before whsch an actlon ts brought in a matter which is the subject of an arbttration cugreement shaU, y a party so applies not later than when submtttmg hfe Jwst statement on the swbstance of the dispute, refer the parties to wbitratlon. (2) The applicatfon referred to in sub-section (1) shaU not be entertained urdess it is accompamed by the origincd cirtoitration agreement or duly certified copy thereof. (3) Notiuithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicicd authority, an arbttration may be a commenced or contmued and cai wbttral award made. * Sypreine Court in case of Brcm.ch Manager, Magma Leasing and Pinance Limited cmd. another -v- Potluri Madhavilccta and anofher reported in (2009) 10 SCC 103, has. held, in order to attract Section 8, fhe following conditions must be satisfied:- (a) that there exists an arbitration agreement; (b) that action has been brcught to the caurt by one party to the arbitralion agreement agcdnst theother party; 'S/S^Sb S •« 3 's-'"'^- ^si'"' 7. 8. r\^ (c) that the sttbject mcctter of the suit fe same as fhe subject .matter of the arbitration agreement; (d) that the other party before he subrmts fvs first statement of the svtistan.ee of the dispute, moves the court for refemng the parties to arbitrixtion; cmd (e) that cdong with the eipplicatioft the other party tenders the origmal arbitration agreement or duly certffied capy thereof. It was further held by the Supreme Court ia para 18 offhe above judgment as under :- 'Section 8 is in the form of legislative command to the court and once the pre- requisite conditions as aforestated are satisfied, the cau.Tt must refer the parties to arbitration. As a matter offact, on JvlfiUment of conditions of Section 8, no option is left to the court and the court has to refer the pwties to arbitration. There is nothing on recard that the pre-requisite conditlons of Section 8 are not fiilly satisfled in the present case. The tricdcaurt, in the circumstances, aught to have referred the parties to arbztratton as per arbitration dause 22. * Complete facts are not before this Court to decide whether .or not the application preferred by the applicant fiilfflls fhe above conditions as held by the Supreme Court in fhe above referred case. Thercfore, in fhe considered opinion of fhis Court, the matter deserves to be remanded back for deciding the above application afresh in fhe light of fhe judginent of fhe Supreme Court as referred hereinabove. Therefore, the impugned order is set aside. The matter is reraitted back to the trial Coiirt for deciding afresh. It is however made clear, fhis Court has not expressed any '€. > opiiiion on the inerits of fhe case and fhe trial Court shall decide the application on its own merit in accordance with law. 9. The rerision is allowed to the above extent. ^ Sd/- N.K. Agarwa! Judge