IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 CRP.No. 359 of 2008() --------------------- AGAINST THE ORDER DATED 19/12/2007 IN IA.11051/2007 IN OS.2960/2007 OF I ADDL.M.C.,THRISSUR .................... REVN. PETITIONER: PETITIONER IN I.A. ------------------------------------ SHRIRAM TRANSPORT FINANCE CO.LTD., NEAR KRISHNA NURSING HOME, CHITTOOR ROAD, ERNAKULAM REPRESENTED BY FIELD OFFICER OF POWER OF ATTORNEY AGENT VINOD BABU. BY ADV. SRI.K.C.VISWAMBHARAN SRI.C.CHANDRASEKHARAN RESPONDENT: RESPONDENT IN I.A. ------------------------------- K.SREERAMAN, S/O.KRISHNA IYER, KIZHAKKEMADATHIL HOUSE, OORAKAM P.O., THRISSUR DISTRICT. BY ADV. SRI.P.DEEPAK FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P.No. 359 of 2008 ------------------------------------------ Dated this the 3rd day of June, 2008 ORDER Petitioner is the 2nd defendant in O.S. 2960 of 2007 on the file of Additional Munsiff, Thrissur. Respondent is the plaintiff. Suit was instituted against the petitioner as 2nd defendant and Kerala Transport Development Finance Corporation as first defendant seeking a decree for mandatory injunction directing defendants to hand over the stage carriage bus seized from the respondent holding that the seizure is invalid and illegal. Petitioner filed IA 11051 of 2007 for referring the dispute to the Arbitrator as provided under Annexure-2 agreement. Petitioner contended that an agreement was entered into between the respondent and M/s. Shriram Investments Ltd. on 20.12.2005 which contains an arbitration clause and subsequently as per the decision of High Court of Madras, assets of the Shriram Investments Ltd. now vests with the petitioner and as there is an arbitration clause in Annexure-2 agreement. Suit is to be referred to the arbitrator and civil court has no jurisdiction. The learned Munsiff as per order dated 19.12.2007 dismissed CRP 359/08 2 the petition holding that there are two defendants and only one defendant has filed the petition and there is dispute regarding the execution of the document and therefore suit cannot be referred to the arbitrator. The order is challenged in this petition. 2. Learned counsel appearing for the petitioner and the respondent were heard. 3. Sub-section 1 of Section 8 of Arbitration and Conciliation Act, 1996 provides that a judicial authority before which an action is prayed in a matter which is subject to an arbitration agreement shall, if all parties so applied not later than when submitting his written statement on the substance of the dispute has to refer the parties to arbitration. It is essential that there should be an agreement between the parties providing for arbitration. Sub-section 2 of Section 8 mandates that the application shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. The argument of the learned counsel appearing for petitioner is that as held by the Apex court in Atul Singh & Ors. v. Sunil Kumar Singh & Ors. (2008 SAR (Civil) 272) once an application is filed under Sub-section 1 of Section 8 accompanied by the original agreement or a duly certified copy thereof before court is bound to refer the dispute to the Arbitrator. 4. Impugned order passed by the learned Munsiff shows that CRP 359/08 3 the learned Munsiff did not consider the application in the proper perspective. Though petition was filed by second defendant it is the same counsel who was appearing for the first defendant also. Second defendant contended that an agreement was entered into between the plaintiff and Shriram Investments, the rights of which now vests with 2nd defendant on 20.10.2005 and the said agreement contains an arbitration clause. The learned Munsiff did not consider whether the agreement was executed by the plaintiff and Shriram Investments and whether the agreement contains an arbitration clause and whether the mandate provides under Section 8(1) is satisfied or not. In such circumstances, the order dated 19.12.2007 is set aside. Learned Munsiff is directed to reconsider IA 11051 of 2007 afresh after hearing the parties and pass appropriate order in accordance with law. M. SASIDHARAN NAMBIAR, JUDGE Okb/-