CRP 10/2011 BEFORE HON’BLE JUSTICE MR HN SARMA Heard Mr. A.K. Goswami, learned Sr. Counsel for the petitioner. The subject matter of challenge in this petition is the order dated 3 0.9.2010 passed in Title Suit No. 108/2008 passed by the learned Civil Judge, No . 2, Kamrup, Guwahati wherein and whereunder the suit was directed to be referre d to arbitration in terms of the Arbitration Clause contained in the MOU arrive d at between the parties. The petitioner herein is a plaintiff who instituted the aforesaid sui t. In the aforesaid suit the petitioner ahs prayed for the following reliefs- i) a decree for declaration that the deed of revocation No. 1474/08 dated 2 1-4-2008 and the notice of revocation dated 24-04-2008 are illegal, void and not binding on the plaintiff ; ii) a decree for setting aside/canceling the deed of revocation No. 1474/08 dated 21-04-2008 and delivering up the said deed to the Court for necessary acti on ; iii) a decree for permanent injunction restraining the main defendant No. 1, his servants, agents and workmen from disturbing and/or interfering with the rig ht of the plaintiff to carry out construction in any manner whatsoever ; iv) a temporary injunction and ad-interim injunction in terms of the prayer (iii) above may be granted ; v) a decree for all the above reliefs against the proforma defendant No. 2 to 7 if they contest the suit by filing a written statement against the interest of the plaintiff in the suit ; vi) a decree for all costs of the suit against the main defendant No. 1; vii) any other relief/reliefs which the Court deems just and proper in the fa cts and circumstances of the case and to which the plaintiff is entitled under t he law and equity. Upon receipt of the summon the defendant No. 1 appearing in the suit filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 pr aying for referring the disputes to arbitration, inasmuch as, there is an Arbitr ation Clause in the MOU executed between the parties. The aforesaid application was filed before filing of the written statement or entering of the defendant in the suit. The said prayer was vehemently objected by the plaintiff/petitioner. The learned trial court vide impugned order dated 30.9.2010 accepting the prayer of the petitioner referred the matter to be decided by way of arbitration in te rms of the provisions of Section 8 of the Act. The learned trial court while passing the impugned order also relied on the decisions of the Apex Court reported in 2008 (2) SCC 602(Atul Singh and Othe rs Vs. Sunil Kumar Singh and Others and as well as the decision reported in N. Radhakrishnan v. Maestro Engineers & Others reported in 2010 1 SCC 72. In the application under Section 8 of the Act it is stated that a certif ied copy of the MOU dated 16.7.2004 by which the parties agree to settle the dis putes by way of arbitration, is annexed as document No. 1. However, the plaintif f/petitioner objecting the said submission submitted that no such certified copy of the MOU was filed by the defendants/respondents. The learned trial court als o considered this aspect of the matter and found that the original MOU is alread y on record and there is no dispute regarding the Clause in the aforesaid MOU. I n such circumstances, rejecting the submission made by the plaintiff/petitioner the matter was referred to arbitration. Mr. Goswami, learned Sr. counsel relying on paragraph 19 of the aforesai d decision of the Apex Court in Atul Singh(supra) submits that in the aforesaid case the Apex Court held that in order to satisfy the requirement of sub- sectio n (2) of Section 8 of the Act, the defendant should have filed the original arbi tration agreement or a duly certified copy thereof alongwith the application, bu t he did not do that. In Atul Singh(supra) the Apex Court held as follows - There is no whisper in the petition dated 28-2-2005 that the original arbitration agreement or a duly certified copy thereof is bein g filed alongwith the application. Therefore, there was a clear non-compliance w ith sub- section (2) of Section 8 of the 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel fo r the respondent has submitted that a copy of the partnership deed was on the re cord of the case. However, in order to satisfy the requirement of sub-section (2 ) of Section 8 of the Act, Defendant 3 should have filed the original arbitratio n agreement or a duly certified copy thereof alongwith the petition filed by him on 28-2-2005, which he did not do. Therefore, no order for referring th e dispute to arbitration could have been passed in the suit. When the original agreement itself is found to be on record it is inconc eivable that such agreement can again be submitted by any of the parties, the de fendant/applicant or the plaintiff. When the document was already on record the learned trial court has prompted to act which indicates sufficient compliance of sub- section (2) of Section 8 of the Arbitration Act, considering purpose and o bjection of S. 8 of the Act. The aforesaid finding of the learned trial court in my considered opinion has not affected its jurisdiction vested by law and I fin d that the learned trial court acted within its jurisdiction so vested by law in passing the impugned order. In that view of the matter, I do not find any merit in this petition and accordingly it stands rejected.