1 WP 7413.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7413 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. H.I.Pathan, Advocate for the petitioners. Mr. S.B.Pulkundwar, Asstt. Govt. Pleader for State. ................................ CORAM : S.V. GANGAPURWALA, J. DATE :27/09/2011 PER COURT : 1. The petitioners have filed Suit for damages, compensation and recovery of the amount. After the Suit was filed, the defendants filed Written Statement. The issues were framed and the parties led their evidence. When the matter was fixed for arguments, the petitioners filed an application for referring the dispute to the Arbitrator. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 2. Mr. H.I.Pathan, the learned counsel for the petitioners submits that even the defendants had accepted in the evidence that there is arbitration clause. In view of that, the Civil Court should have referred the matter to the Arbitrator for arbitration. For the said purpose, the learned counsel 2 WP 7413.2011 relies on the Judgment of the Apex Court in the case of Hindustan Petroleum Corporation Ltd. V/s M/s Pinkcity Midway Petroleiums reported in AIR 2009 Supreme Court – 2881. 3. With the assistance of the learned counsel, I have perused the impugned order. 4. Earlier, the petitioners had moved an application U/s 89 of the Code of Civil Procedure. The said application was rejected. Thereafter, the present application is filed purportedly U/s 8 of the Arbitration and Conciliation Act, 1996 [ For short, ‘ Arbitration Act ’ ]. It would be seen that the parties have led their respective evidence after the issues were framed and the matter is posted for final arguments. At that stage an application is filed by the plaintiffs for referring the dispute to the Arbitrator for arbitration. Section 8 of the Arbitration Act reads thus, : “ 8. Power to refer parties to arbitration where there is an arbitration agreement - (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. ( 2 ) The application referred to in sub-section ( 1 ) shall not be entertained unless it is accompanied by the 3 WP 7413.2011 original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub – section ( 1 ) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. ” 5. In view of the clear language of Section 8 of the Arbitration Act, the application could not have been entertained by the Civil Court before whom the Suit was pending. If at all, the plaintiff feels that there is existence of arbitration clause, then in that case, the plaintiff has his own remedies. The plaintiff has also not exhausted the remedy U/s 11 ( 6 ) of the Arbitration Act. 6. The Judgment in the case of Hindustan Petroleum Corporation [ supra ] is on altogether different premise. It deals with the fact that the question of applicability of arbitration clause can not be gone into by the Civil Court and when an application is made, the Court has to refer the same to the Arbitrator for arbitration, but then the same would be subject to the limitations incorporated U/s 8 of the Arbitration Act. 7. In light of the above, though the reasons given by the learned trial court about the non existence of the arbitration clause is not relevant at this stage, still as the matter is for final arguments, the present petition is not being 4 WP 7413.2011 entertained, more particularly in view of Section 8 of the Arbitration Act. 8. The Writ Petition as such is dismissed. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 7413.2011 5 WP 7413.2011