.^ ^T/ ^ •ISP 'fW1 :ra:!"8St.®!2 S"-rd«, !*fe- ^^yw ssi IN THE HIGH COURT OF TUDICATURE AT BILASPUR . H~~:t- /2004 APPLIG^NTS DEFENDANTS '-Wi'i y ^\^y :<!..•• ti" u/ ^'^" 7 l^. .-•' ^ RESPONDENT PLAINTIFF ? Zonal Chief Sahara India, D-4/180, Arera Colony, near 10 No. Bus Staff, Bhopal, 462016 2] Regional Manager, Sahara India, Near Telephone Exchange, Nagpur 30. 3] Sector Manager, Sahara India, Bhatia Complex, In front of Vivekanand Ashram, G.E. Road, Raipur (C.G.) 4] Branch Manager, Sahara India, Behind Krishna Petrol Fump, Gandhi Nagar Ward, Jagdalpur (C.G.) VERSUS /Smt. Geeta Singh W/o. M.P. Singh, Aged ateout35 years, R/'o. SadarWard, Jagdalpur, Distt. Bastar (C.G.) REVISION UNDER SECTION 115 OF CIVIL PROCEDURE CODE Being aggrieved by tfae order-dated 09.07.2004, passed by Second Additional Distei.cUluiee—tami-i.lnu^-" ,-> ii|!8,]|)Bii<S»S •!3'a;a!iS5!iafc ^ ,c ^ HIGH COURT OF CHHATTISGARH. BILASPUR APPLICNTS RESPOiroENTS C.R.No. 177 of 2004 Zonal Chief Safaara aad others Versus Smt, Geeta Si .u^ SB: HON'BLE SHRI N.K. AQRAWAL, J PRBSENT: 6, Shri Manoj Paranjpe, Advocate for the appllcants. ORAL ORDBR (13-11-2009) 1. Heard on admission. Thls revision arises out ofthe order dated 9-7-2004 passed by the Additional District Judge, Jagdalpiir in Civll Sirit No. 15B/2002. Pact briefly stated are as under.- The plointiff mstituted a suit against fhe defendant for recovery ofRs. 2,08,156.80. The deferidants filed theirwritten statement in which apart from other pleas taken in defence, plea of non-maintainabUity of suit an account of existence of arbitration agreement has also been taken. Leamed trial Court framed followtng preliminary issue :- "W qrf^ft SRT T(^a q? ^RT Tff •41.!)1<?(<) ^ ftqW^ et^tR)*i< 4 11 ?" Leamed trial Court by recording a findlng that neifher brfore or after fiiing of suit, appUcation for appointment of arbitrator was flled by fhe defendants, held (hat the suit is mamtainable. Hence fhis revision. Shri Manoj Paranjpe, leamed counsel for the applicaat refying upon the decision of the Suprerae Court ui case of P. Auand GiEiiapathi^^^^^aju aad otters -v- P.V.O. Raiu (diedl and otliers reported in AIR SC 1886 and upon the judgment .'ll;^;^^i^l ^:3(^E:.^ of Gujrat High Court in B^corts Rnance Ltd. -v- Mansukli S. Dhokal reported in 2003(3) Arb. LR 233 (Gujrat), would submit that since fhe plea of inatatainability of suit on account of existence of arbitration agreement has ah-eady been raised by the defendants in the written statement filed by them, then it was mciunbent upon the Coiirt to see whether or not, fhere is an arbitration agreement and if it finds fhat there is an arbitration agreement, then the intention of fhe Arbitration and Conciiiation Act, 1996 (briefty, the Act of 1996'.) is to be implemented by refemng the matter for settlement by arbitration. He woiild further submit fhat fhe intention of the legislature can also be gathered from language used in Section 89 of C.P.C. 7. I have heard learned counsel for the applicant. 8. Admittedly in adherence to the provisions contained in Section 8 of Act of 1996, neither application for rrference of the dispute to arbitration was fUed nor (he ori^nal arbitration agreement or its duly certified copy was filed before submitting hls first statement on the substance ofthe dispute by filing his written statement. The only ground raised in fhe written statement by fhe applicants is that ttie sult is not maintainable in fhe light ofthe arbitration agreement. 9. Under Section 9 of C.P.C., civil coiirts have jurisdiction to tiy all the suits unless banred expressely or by implication. 10. Section 8 offhe Act of 1996 reads as under:- S/ 8. Pouwr to refer parU.es to atlfitration where there is em ac&EtrcrtIon agreement -(1) A judidal ccuthority before which an action is braught in a matter which ts the svbject ofan ca'bitration agreement shcdl, if a party so applies not later than when svtimittmg hte ftrst statement on the substanae ofthe dispute, referthe parties to arbitrcitum. _ ^•is^t.d^^'^''1^*8^^^^^^^^1"? ^fis-titfens a":;ri»-;t« yv^ (2) The applvxitian referred to ta sub-sectian (1) shaS. not be entertcaned unfess it is accampccm^. by -the origmcd cirbitrccticm. agreement or a duly oertyied oopy thereof. (3) NotwUhstandmg thcct cm. applicatwn has been made vnder sub-section (1) and that the issue is pending before thejudicicd authority, ccn cerbitration may be commenced or continued and an arbitral award made." 11. Admittedly, there was a clear non-compliance with Section 8 of theAct of 1996. The provisions contained in Section 8 are mandatoiy in nature and its non-compliance creates a r^ht in favour of the platntiff to have the dispute adjudicated by the Court and the opposite party is precluded in insisting upon the dispute to be adjudicated by arbitration. 12. The Supreme Court in case of P. Aaaad Gajaoathi (supra) in para 5 of its judgment held that provision contained in Section 8 of the Act of 1996 creates a ri^it in favoiir of £he person bringing fhe action to have the dispute adjudicated by Coint, once the ofher party has submitted his statement rf defence. Therefore, even as per fhe judgment referred and relied upon by Shri Paranjpe, a valuable right of adjudication of fhe dispute by the Court has been created in favour of fhe plalntiff. 13. It is also not a case that althou^i fhe application has been preferred by the applicant subsequent to fiVngof fheir written statement which remained un-opposed by the plaintijff. Here in the instant case, no such appBcation has been filed at all by the defendants/applicants. In view of the above fact, even the judgment of Gujarat High Court in Escorts Finaace Ltd. (supral relied ypon by Shri Paranjpe is ofno help to him. 14. The scheme ofthe provisions contained in Section 8 of the Act of 1996 clearly su^ests that the fact of a party's failure to invoke the arbitration agreement by way of such a timely m ^.SlSr " request prevents fhe party from lavoking the agreement at subsequent phase of fhe court proceeding unless, fhe other party does not object to it. 15. For (he foregoing reasons, leamed trial Court has not committed any jurisdictional UlegaUty in passing the order tmpugned. • 16. The revision being devoid of substance liable to be and is hereby dismissed at motion stage. 17. Consequently, mterim order graated on 14-3-2005 stands vacated. Sd/- N.K. Agrawal Judge ^fs^tSWf