HIGH COURT OF CHHA??iSGii H AT BILA$PUR u‘rit Petition (Art227) No.15i27 0f 2011 (Writ Petition under Article 227 of the Constitution of indie) MrManoi Paranjape, counsei for t‘ne petitioner. ivirRaj Shekhar, counsei for the respondent ($8: Hon’bie Mr. T.P. Sharma, J.) ORDER (Deiivered on 15-7—201 1) 1. By this petition under Article 227 of the Constitution of indie, the petitioner has chaiienged the iegaiityi and propriety of the order dated 15.2.2011 (Annexure P/1) passed by the 7'“ Additionai District Judge, Raipur, in Civil Suit No.2—B/2010, eilowing the appiicetion filed on behalf of the respondent for sending the matter to arbitrator under Section 8(1) of the Arbitration and Conciliation Act, 1§Q6 (for short ‘the Aot, 1996’), The respondent has issued purchase order containing arbitration oiause reiating to dispute which reads as under:- “All disputes of differences whatsoever arising between the parties out of or in relation to work/suppiy of. work order/purchase order or effect to dis-contact or breach thereafter shell be settled emioabiy. However, if the parties are unabie to soive them amicabiy, the same shail be finaiized setting by arbitration and reconciiiation. The award may in “"**i pursuance thereafter shall be final and binding on the parties.” 9etitioner M/s‘ R & A Enterprises, through: P!aintiff Proprietor-Am! Rao Kadam, shop no.27, Near Hotel Centra! Point, Naveen Bazar, Phool Chowk, Raipur, Tahsil & Disirict Raipur (0.8.) Versus Respondent Nils. Mahendra Spenge & Power Defendant Limited, through: Director Mahendra Agrawai, Behind Hoiei Bhagat, MG. Road, Dadabadi, Raipur, Tahsii & District Raipur and Siitara Face-2, Raipur, Tahsii 8: District Raipur ‘ (C.G.) 69 The petitioner/plaintiff has filed a suit for recovery of the amount to the tune of Rs.1,03,663/- relating to seil of articles under such purchase order. By filing written statement, the respondent has specifically mentioned in para 1 of written statement as preliminary objection that suit is not maintainable in the tight of arbitration oiause in purchase order and also prayed for dismissal of suit on the ground of lack of jurisdiction. After filing such reply the present petitioner has amended its piaint and has specifically pieaded that purchase order not signed by any of the party and it is not arbitration agreement, therefore, provisions of Arbitration Act do not attract in this civil suit. After filing of such amendment appiication r“ (P/ 4L on behalf cf the petitioner, the respondent has tiled an appiioation under Section 8(1) of the Act, 1996 for referring the matter to arbitrator which has been allowed‘by the Court, below; 3. l have heard learned counsei for the parties, perused the order impugned and other documents filed on behaif of the petitioner. 4. Learned counsel for the petitioner submitted that as per Section 8(1) of the Act, 1996 the respondent was under obligation to fiie an appiication for referring the matter to arbitrator before submission oi the first statement on the substance of the dispute but he has filed aforesaid application after dling of written statement and thereby he has waived his right to fiie such application. The Court below ought to not have been aliowed such appiication and by allowing such appiication the Court below has committed an iiiegality. Learned counsel further placed reiiance in the matter of Booz Alien and Hamiiton Inc. v. SBI Home Finance Limited and others reported in (2011) 5 SCC 532 in which the Supreme Coutt has held that parties are required to iiie application under Section 8 of the' Act, 1§95 before submission of the first statement on the substance of the dispute, faiiing such it may be presumed that it has been waived their right. On the other hand, learned counsei for the respondent opposed the petition and submitted that in the present case the petitioner has soid the articles as per purchase order signed by authorized signatory of the respondent containing arbitration clause. This is not a case in which the respondent has tiled application first time after filing of its written statement but he has filed written statement aiong with preliminary \ \\ \ \ \ <@ objection containing the aforesaid fact, in which it ha$ specificalw pieaded that purchase arder containing arbitration clause is‘ an aibiiiation agreement, therefore, the Civil Court is not having jurisdiction to try such suit. The respondent has also prayed for referring the matter to arbitrator. After filing of written statement the present petitioner has tiled amendment appiication to amend its plaint and by filing such amendment the respondent has amended its plaint relating to arbitration ciause and has denied the existence of any arbitration ciause or arbitration agreement and thereafter the respondent has filed aforesaid application for referring the matter to arbitrator. Arbitration agreement has been defined in Section 7 of the Act, 1996 which reads as under:- “7. Arbitration agreement-(1) In this part, “arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in- (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contrac As per Section 7 of the Act, 1%5, the aforesaid purchase order is in existence containing arbitration clause and at the time of such purchase order the present petitioner has not denied the existence of such arbitration ciause or existence of such purchase order containing arbitration clause. inter alia, the petitioner has ciaimed money on the basis of seli of articies on the basis of aforesaid purchase order. The present respondent has iiied written statement containing aforesaid objection and existence of arbitration clause. The respondent has also prayed for referring the matter to arbitrator. This shows that at the time of r/ fliing of such statement the respondent has prayed for referring the matter to arbitrator. As per its ctaim, at the time of filing of such written statement he was not having a copy of such agreement but at subsequent stage after fiiing of aforesaid purchase order on behalf of the petitioner he has ftied application for referring the matter to arbitrator. 10. This circumstance cieariy reveals that the-present respondent has not waived its right as held by the Supreme Court in the matter of Booz Alien and Hamilton Inc. (supra), but has claimed for referring the matter to arbitration at the hrst instance. 11. @ After considering the nature of dispute and existence of arbitration ctause ‘ the Court below has allowed the application for referring the matter to arbitration. By ‘allowing such application, the Court below has not committed any illegality warranting interference in exercise of supervisory jurisdiction. 12. Consequently, the petition being without substance is liable to be dismissed and it is hereby dismissed. No order as to costs. Sdl— T.P. Shanna Judge