THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL REVISION PETITION No.5836 of 2009 24.12.2009 Between: Indus Ind Bank Limited, represented by its General Power of Attorney, K. Srikanth, Hyderabad … Petitioner AND Kancharla Ravindra Naidu (died) and another …Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL REVISION PETITION No.5836 of 2009 ORDER: Petitioner is a private Bank with license from Reserve Bank of India to carry on the business in banking. Petitioner statedly advanced loan to Kancharla Ravindra Naidu for purchase of tippers and excavators, which are hypothecated under hirepurchase agreement. The amount was repaid. Subsequently, Ravindra Naidu filed O.S.No.24 of 2004 on the file of the Corut of I Additional District Judge, Nellore, for recovery of Rs.29,00,000/- allegedly collected from him in excess. Petitioner is opposing the suit. Be it noted that K.Kiran Kumar (second respondent) is son, who is on record before the Court below as well as before this Court. Be that as it is, petitioner filed an application under Section 8(1) of Arbitration and Conciliation Act, 1996 (the Act, for brevity), requesting the Court below to appoint an arbitrator in terms of hirepurchase agreement. The same was dismissed by the Court below by impugned order dated 19.10.2009 only on the ground that original agreement or duly certified copy thereof was not produced and that based on photocopy of the agreement, arbitrator cannot be appointed. In this revision, learned Counsel for petitioner Bank submits that attested copy of arbitration agreement is sufficient compliance with the requirement of Section 8(2)of the Act. Per contra, learned Counsel for respondent relied on Atul Singh v Sunil Kumar Singh[1] and submits that unless and until duly certified copy of arbitration agreement is produced judicial authority cannot appoint an arbitrator. In Atul Singh (supra), as a question of fact, Supreme Court found that agreement, which was produced for invoking jurisdiction under Section 8(1) of the Act, did not contain signature of party and, therefore, the matter cannot be referred to arbitration. In that context, it was ruled. There is no whisper in the petition dated 28.2.2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non-compliance of sub-section (2) of Section 8 of 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, defendant No.3 should have filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28.2.2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit. It is not denied b;efore us that the petitioner Bank has produced photocopy of hirepurchase agreement containing arbitration clause. This in our considered view is sufficient compliance with Section 8(2) of the Act. As the hirepurchase agreement between the petitioner and respondent is in the realm of private law, certification of the document as required under Section 76 of the Indian Evidence Act, 1872, may not be possible and, therefore, a copy attested to be true copy of original agreement would be sufficient for attracting jurisdiction of Section 8(1) of the Act. We however hasten to add that if very existence of agreement is denied or existence of arbitration clause as contemplated under Section 7 of the Act is denied, the party seeking arbitration has to necessarily prove the said facts before invoking jurisdiction of judicial authority under Section 8(1) of the Act. We have perused the impugned order passed by the Court of I Additional District Judge, Nellore. The application under Section 8(1) of the Act was dismissed only on the ground that photocopy does not comply requirement of Section 8(2) of the Act. This, in our considered opinion, is not correct view. Accordingly we allow the civil revision petition and remit the matter to the Court below requesting to appoint arbitrator under Section 8(1) of the Act in accordance with clause (v) of Hirepuchase agreement. The civil revision petition is accordingly allowed. _______________ (V.V.S.RAO,J) ______________________ (B.N.RAO NALLA,J) December , 2009 YS [1] AIR 2008 SC 1016