:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.786 OF 2008 PETITION NO.786 OF 2008 PETITION NO.786 OF 2008 Abdul Haque Abdul Aziz Residing at Room No.3, Gulshan Mahal, Lady Jamshedji road, Mahim, Mumbai- 400 016 ..Petitioner V/s 1. Mohammed Rizwan 2. Naseem Ahmed Abdul Kadar 3. Mohamed Irfan Abdul Kadar 4. Mohamed Arif Abdul Kadar 5. Mohamed Furkan Abdul Kadar 6. Raeesa Abdul Kadar 7. Rahemat Abdul Kadar 8. Arifa Abdul Kadar 9. Yasmeen Abdul Kadar 10.Nasreen Abdul Kadar 11.Praveen Abdul Kadar All residing at R.No.14, 1st floor, Ameerani Mansion, Miya Mohamed Chotani Road, Mahim Mumbai-400 016 12.Abdul Sami Abdul Hamid 13.Abdul Salam Abdul Hamid 14.Shamim Ahmed abdul Hamid Nos. 12 to 14 residing at Star Bakery, Kanja Road, Near Railway Gate, At & Post Visyara District Surat (Gujrat) 15. Abdul Rab Abdul Aziz 16. Abdul Hai Abdul Aziz 17. Mohamed Shahid Abdul Aziz Nos. 15 to 17 residing at and post Akbarabad Bijnour (U.P.) 18. Rose Bakery a registered partnership fir having its office at 2-D Mori Road, Mahim, Mumbai- 16 ..Respondents. Mr. R.A. Thorat with Shri P.J.Thorat for the :2: petitioner Mr. V.R. Tripathi i/b M/S V.R. Tripathi and Associates for respondent No.1. CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 17TH JUNE, 2008 : 17TH JUNE, 2008 : 17TH JUNE, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT 1. Rule. Rule made returnable forthwith and heard finally by consent. 2. This petition is directed against the order dated 13th December, 2007, passed by the City Civil Court, Bombay, whereby the Notice of Motion No. 3765/2007 taken out by the defendants to refer the dispute to arbitration is allowed. 3. The suit is filed by the petitioner to claim his share in the suit property on the basis of partnership deed. The partnership deed contains an arbitration clause wherein it is provided that in case of any dispute, the same would be referred to arbitration. 4. It is the case of the petitioner that the suit before the Trial Court is part-heard and it is only :3: during the course of cross-examination of the petitioner that the Respondent No.1 has filed the Notice of Motion being Notice of Motion No. 3765 of 2007 praying that the matter be referred to arbitration. The learned Counsel for the petitioner submitted that the suit is of the year 2000 and the Notice of Motion is taken out in the year 2007 and the intention of the respondent is only to delay the hearing of the suit. The learned Counsel further contended that it was not permissible for the petitioner to refer the dispute to arbitration at this stage, when the Written Statement of the respondent was filed long back and the petitioner has participated in the trial of the suit. The learned Counsel pointed out that the provisions of section 8 of the Arbitration and Conciliation Act, 1999 and submitted that though ordinarily the Court is required to refer the matter to arbitration, the case of the petitioner falls within the exceptions provided under the said section 8, which provides that the Judicial Authority is required to refer the dispute to arbitration only in cases where the application for referring the matter to arbitration is made prior to the filing of the first statement :4: i.e. prior to the filing of the written statement and since the written statement in the suit is filed long back, the Trial Court ought not to have referred the parties to arbitration. 5. The learned Counsel has referred to the decisions in the cases of (1) P.Anand Gajapathi Raju P.Anand Gajapathi Raju P.Anand Gajapathi Raju V. V. V. P.V.G. Raju, P.V.G. Raju, P.V.G. Raju, reported in AIR 2000 SC 1886 (2) Ganesh Ganesh Ganesh Trading Company V/s Government of Maharashtra, Trading Company V/s Government of Maharashtra, Trading Company V/s Government of Maharashtra, reported in 2007(4) Mh.L.J., 715 (3) Motilal S/o Motilal S/o Motilal S/o Khanyalal Khanyalal Khanyalal Bharadiya V/s Kedarmal Jainarayan Bharadiya V/s Kedarmal Jainarayan Bharadiya V/s Kedarmal Jainarayan Bharadiya, Bharadiya, Bharadiya, reported in 2003(2) Mh.L.J. 751 wherein it was held that the parties who desire to refer the matter to arbitration have to apply before the filing of the written statement and once the written statement is filed it can be assumed that the party has submitted to the jurisdiction of the Court and the Court ceases to have jurisdiction to refer the dispute to arbitration. He therefore, submitted that the Trial Court has erred in allowing the Notice of Motion of the petitioner and referring the dispute to arbitration. 6. The learned Counsel for the respondent No.1 on :5: the other hand submitted that Trial Court has no jurisdiction to entertain the suit in view of the arbitration clause in the partnership deed. He submitted that the petitioner in the course of his cross-examination has himself stated that he does not have any objection if the dispute is referred to arbitration and accordingly the Notice of Motion was taken out to refer the dispute to arbitration. He submitted that in any case, the plea of having the matter referred to arbitration was taken in the Written Statement itself and it cannot be said that it is for the first time this issue being raised in the Notice of Motion. The learned counsel further submitted that the Trial Court had already framed a specific issue under Order 14 rule 2 of CPC regarding the maintainability of the suit in view of the arbitration clause in the partnership deed. He further argued that once the respondents had brought to the notice of the Court that there exists the arbitration agreement between the parties to the dispute, the Court was bound to refer the dispute to arbitration. He further pointed out that at the time when the suit was filed, another Notice of Motion was also taken out by the respondents wherein interalia :6: it was prayed that the parties be directed to refer the dispute to arbitration. He has relied upon the very case which has been relied upon by the petitioners viz. P. Anand Gajapathi Raju V. P.V.G. P. Anand Gajapathi Raju V. P.V.G. P. Anand Gajapathi Raju V. P.V.G. Ragu Ragu Ragu (Supra), wherein it is held that even after the submission for the statement, where the party does not object,there is no bar on the Court to refer the parties to arbitration. He submitted that in the instant case in the cross-examination, the petitioner has specifically stated that he has no objection if the dispute is referred to the arbitration, and therefore, the Trial Court had rightly referred the dispute to arbitration. 7. Having considered the rival contentions of the parties, the point which arises for my consideration is - Whether the Trial Court has rightly referred the matter to arbitration when the trial of the suit has commenced? 8. The fact that there is arbitration clause, is not in dispute. At first I was inclined to interfere in the impugned order as I found that the notice of motion referring arbitration was taken out when the :7: matter is already part-heard. However, on hearing the learned counsel for Respondent No.1 and perusal of the record it was revealed that there was another Notice of Motion being Notice of Motion No. 374/2001 dated as far back as 18-01-2001 wherein the respondents had interalia prayed that the suit be stayed and the parties be referred to arbitration under section 8 of the Arbitration and Conciliation Act, 1996. This notice of motion was disposed of by the Trial Court by order dated 12.02.2001. However, the issue in so far as reference to arbitration was concerned, was not decided by the Trial Court and in the said order dated 12-2-2001 in para 9 it was specifically observed by the Trial Court as follows:- "As far as maintainability of the suit in view of arbitration clause is concerned the issue has already been framed by my learned predecessor and it would heard separately" 9. Thus, this issue though was raised at the out- set, was not decided by the Trial Court at that stage. Undisputedly there is also an issue framed by the Trial Court regarding the maintainability of the suit in view of the Arbitration clause. It cannot therefore, be said that the issue for referring the :8: matter to the arbitration had not been raised at an earlier stage and that this issue was sought to be raised only after the matter became part-heard. Unfortunately the Court had not decided the specific prayer in the notice of motion No. 374/2001 and has brushed aside the same by observing that it was to be decided separately. Moreover, this plea has also been specifically raised in the written statement. 10. Section 8 of the Arbitration and Conciliation Act, 1996 deals the powers to refer the parties for arbitration where there is arbitration clause and which reads as under:- "8- "8- "8- Power to refer parties to arbitration Power to refer parties to arbitration Power to refer parties to arbitration where where where there is an arbitration agreement.- there is an arbitration agreement.- there is an arbitration agreement.- (1) (1) (1) A judicial authority before which an A judicial authority before which an A judicial authority before which an action action action is brought in matter which is the is brought in matter which is the is brought in matter which is the subject subject subject of an arbitration agreement shall, if of an arbitration agreement shall, if of an arbitration agreement shall, if a party so applied not later than when party so applied not later than when party so applied not later than when submitting submitting submitting his first statement on the his first statement on the his first statement on the substance substance substance of the dispute, refer the parties to of the dispute, refer the parties to of the dispute, refer the parties to arbitration. arbitration. arbitration. (2) (2) (2) The application referred to in sub-section The application referred to in sub-section The application referred to in sub-section (1) (1) (1) shall not be entertained unless it is shall not be entertained unless it is shall not be entertained unless it is accompanied accompanied accompanied by the original arbitration by the original arbitration by the original arbitration agreement agreement agreement or a duly certified copy thereof. or a duly certified copy thereof. or a duly certified copy thereof. (3) (3) (3) Notwithstanding that an application has Notwithstanding that an application has Notwithstanding that an application has been been been made under sub-section (1) and that the made under sub-section (1) and that the made under sub-section (1) and that the issue issue issue is pending before the judicial is pending before the judicial is pending before the judicial authority, authority, authority, an arbitration may be commenced or an arbitration may be commenced or an arbitration may be commenced or continued continued continued and an arbitral award made." and an arbitral award made." and an arbitral award made." :9: The section clearly discloses that the Trial Court was statutorily obliged to refer the dispute to arbitration, particularly when the respondent has raised this plea not only in the written statement, but had also by way of a specific prayer in the Notice of Motion taken out as far back as in the year 2001 and the Trial Court has also framed an issue in that regard. 11. The reference of the earlier application to refer the dispute to arbitration being not decided by the Trial Court, is made in the reply of the respondent to the petition. This fact has not been controverted by filing any rejoinder nor is it disputed in the arguments. This prayer in the Notice of Motion of 2001 had thus remained to be decided by the Trial Court and no fault can be found with the conduct of the respondent No.1 in raising this plea again by filing another Notice of Motion in 2007 wherein the impugned order came to be passed. There is nothing on record to indicate why the Trial Court did not refer that dispute to arbitration at that stage itself, when it was statutorily obliged to do :10: so and it was to correct on part of the Trial Court to have deferred this issue which has resulted in this controversy. 12. In view of the aforesaid discussion, I find that the impugned order has been rightly passed by the Trial Court and does not warrant any interference by this Court in exercise of its writ jurisdiction under Article 227 of Constitution of India. 13. The petition is dismissed. Rule discharged. No order as to costs. 14. At this stage, the learned Counsel for the petitioner prays for stay of this order. The Trial Court shall not proceed with the hearing of the suit for a period of 6 weeks from today. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)