1 WP-2361-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 2361 OF 2010 Shri Chandar Tukaram Madvi & Ors. ... Petitioners (Orig.defendants) vs. M/s. Advance Home Makers & Ors. ... Respondents (Orig. plaintiff) Ms. Aparna Shinde, Advocate, for the petitioners. Mr. P.R.Arjunwadkar,Advocate for the respondent No.1. Mr. S.D.Rayrikar, Advocate, for the respondent No.4 - State. CORAM: J.H.BHATIA,J. DATE : 5th October, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The respondent No.1 filed Special Civil Suit No.133 of 2006 for specific performance of contract for sale of certain land. The present petitioners are the defendants, who had allegedly entered into the agreement for sale of the property. The petitioners filed an application on 9.11.2009 to refer the matter to arbitration in view of clause 9 of the terms of the agreement. The application was opposed. The trial Court rejected the application holding that the defendants/present petitioners had already filed the written statement long back 2 WP-2361-10.sxw and had not taken objection to the jurisdiction of the Court in view of the arbitration clause and thus they have surrendered to the jurisdiction. The trial Court held that in view of Section 8 of the Arbitration & Conciliation Act and the circumstances, the application cannot be allowed. 3. The record reveals that the suit was filed in 2006. The defendants, except defendant Nos. 5, 6, 10 and 12, filed written statement on 12.1.2007 contesting the suit. In that written statement, they nowhere raised the question of arbitration. The record also reveals that later on, remaining defendants Nos. 5, 6, 10 and 12 filed Pursis Exhibit 30 adopting the written statement filed by the other defendants and thus they had also filed written statement. The application for reference to arbitration was made more than 2-1/2 years after the written statement was already filed by the parties. 4. Section 8(1) of the Arbitration and Conciliation Act requires that if a party to the suit applies not later than when submitting his first statement on the substance of the dispute, the judicial authority may refer the dispute of parties for arbitration. In the present case, the written statement, which may be treated as first statement was filed more than 2-1/2 years before the application was made and therefore, in view of Sec. 8(1) of the Act, the application could not be 3 WP-2361-10.sxw allowed. I find no substance to challenge the impugned order. 5. Therefore, the Petition stands dismissed. (J.H.BHATIA,J.)