C.R.No.7889 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.7889 of 2010 Date of decision: 28.07.2011 M/s Atlas Pet Plas Industries Ltd ….Petitioner Vs. M/s Victory Auto Components Pvt Ltd and another ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ajay Jain, Advocate for the petitioner. Mr. Sanjay Kaushal, Advocate for respondent No.1. Mr. Aman Chaudhary, Advocate for respondent No.2. Jaswant Singh, J Defendant-petitioner has filed the present petition under Article 227 of the Constitution for setting aside the impugned order dated 15.1.2010 (P.4) passed by the learned Civil Judge (Sr. Division), Rewari whereby his application filed under Section 8 of the Arbitration and Conciliation Act, 1996 (for short “the Act”) for referring the matter for arbitration has been dismissed. Brief facts of the case are that the plaintiff-respondent No.1 filed a suit for possession by way of specific performance of agreement to sell dated 10.3.2006 (P.1) regarding industrial plot bearing Nos.95 and 96 (re-numbered 177 and 178) measuring 8000 sq. meter in Sector 3, Bawal Industrial Area, District Rewari. During the pendency of the civil suit, an application was filed by the defendant-petitioner under Section 8 of the Act C.R.No.7889 of 2010 #2# and the same was opposed by the plaintiff-respondent No.1 and after hearing both the sides, learned trial Court dismissed the same vide order dated 15,1.2010, hence the present petition. Learned counsel for the petitioner argues that the learned trial Court has committed a gross error of law while dismissing the application under Section 8 of the Act. He further argues that keeping in view the mandatory provisions of the Act, it was imperative for the learned trial Court to refer the matter for arbitration as per Clause 14 of the agreement to sell dated 10.3.2006. He relies on a judgment of Hon'ble Supreme Court reported as Bharat Sewa Sansthan v. U.P. Electronics Corporation Limited, AIR 2007 SC 2961 to the effect that photo copy of the agreement is sufficient for compliance of Section 8(2) of the Act. On the other hand, learned counsel for the respondent has vehemently opposed the contention of the petitioner and has submitted that the present petition is liable to be dismissed only on the ground that the defendant-petitioner has itself submitted to the jurisdiction of the learned trial Court and has filed its written statement after passing of the impugned order and the issues have already been framed whereas the present petition is filed on 1.12.2010 i.e almost after a period of eleven months from the date of passing of the impugned order dated 15.1.2010. He also argues that there is non-compliance of provisions of Section 8(2) of the Act and in support, he relies on a judgment of Hon'ble Supreme Court reported as Atul Singh and Ors v. Sunil Kumar Singh and another, 2008 (2) SCC 602. After hearing learned counsel for the parties and perusing the paper book, this Court is not inclined to interfere with the impugned order dated 15.1.2011 and the present petition deserves dismissal. C.R.No.7889 of 2010 #3# A perusal of the impugned order dated 15.1.2010 reveals that the learned trial Court has dismissed the application filed by the defendant- petitioner under Section 8 of the Act on the following grounds: 1. The application is barred by limitation. 2. The application has not been accompanied by the original agreement or certified copy as required under Section 8(2) of the Act. 3. The name of the Arbitrator has not been mentioned in the Arbitration Clause. 4. Civil Court has no jurisdiction to appoint an Arbitrator. So far as point No.1 is concerned, both the parties are ad idem that the application was within limitation. So far as point No.2 is concerned, it is conceded by learned counsel for the plaintiff-respondent No.1 that the copy of agreement had already been filed along with the plaint but it is submitted that as per the provisions of Section 8(2) of the Act, it was mandatory for the defendant- petitioner to enclose either the original agreement or its certified copy along with the application in view of Atul Singh's case (supra). From the rival contentions of both the parties, one thing is clear that copy of agreement was on record although the same was appended with the plaint by the plaintiff; but there was neither original nor certified copy attached with the application under Section 8 by the defendant-petitioner. Therefore, the point to be decided is whether there was compliance of Section 8(2) of the Act or not. In Atul Singh's case (supra), appellant filed a suit for declaration, inter alia, praying that the partnership dated 17.2.1992 be declared as illegal and void and during the pendency of the suit, an C.R.No.7889 of 2010 #4# application dated 28.2.2005 was filed under Section 8 of the Act for referring the matter to Arbitration but the same was dismissed, however, in the revision petition, the High Court of judicature at Patna in Civil Revision set aside the same and allowed the revision. Ultimately, the matter went to Hon'ble Supreme Court and it was held in para No.19, which reads as under: “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 with 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 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 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.” So far as the judgment in Bharat Sewa Sansthan's case (supra) relied upon by learned counsel for the petitioner is concerned, the same is not helpful to the petitioner and the same is distinguishable on facts. In that case, an application under Section 8 of the Act was filed by the defendant-respondent (Corporation) during the pendency of the suit for referring the matter to the arbitration and there was another application also under Order XI Rule 14 of the CPC for summoning of the original lease deed from the appellant-Sansthan by alleging that the original lease agreement was in possession of the appellant-Sansthan whereas the stand of the Sansthan was that the original agreement was not in its possession and in these circumstances, respondent-Corporation placed on record photo C.R.No.7889 of 2010 #5# copies of the agreement along with an application under Section 8 of the Act but the same was dismissed. However, in the revision the High Court of Judicature at Allahabad, Lucknow Bench set aside the dismissal order and held that the photo copy of the lease agreement could be taken on record under Section 8 of the Act for ascertaining the existence of the Arbitration Clause and ultimately the matter went to Hon'ble Supreme Court and in para 21 of the judgment, it was held as under: “21. It is not in dispute that on 11.11.1980 the respondent- Corporation took from the appellant-Sansthan an area measuring 14,925 sq. ft. on monthly rent under a lease agreement. In June 1981, the appellant-Sansthan let out additional accommodation measuring 3000 sq. ft. area on monthly rent for setting up Marketing Office of M/s Uptron India Limited, which is the subsidiary of the respondent- Corporation. The appellant-Sansthan filed suit for recovery of arrears of rent and ejectment of the respondent-Corporation from the demised premises. In the trial court, the respondent- Corporation preferred two applications, i.e. one under Section 8 (1) of the Arbitration Act and second under Order XI Rule 14 CPC for summoning of the original lease deed from the appellant-Sansthan. The learned Additional District Judge (Special Judge, E.C. Act), Lucknow, has rejected both the applications. The High Court in writ petition filed by the respondent-Corporation against the order of the trial court, allowed the application of the respondent-Corporation filed under Section 8(1) of the Arbitration Act. It was the specific case of the respondent-Corporation before the High Court that the original agreements are in the possession of the appellant- Sansthan, whereas the stand of the appellant-Sansthan was that the original agreements are not in its possession. The respondent-Corporation placed on record of the trial court photocopies of the agreements along with an application under Section 8(1) of the Arbitration Act. The High Court, in our view, has rightly held that the photocopies of the lease agreements could be taken on record under Section 8 of the C.R.No.7889 of 2010 #6# Arbitration Act for ascertaining the existence of arbitration clause. Thus, the dispute raised by the appellant-Sansthan against the respondent-Corporation in terms of the arbitration clause contained in the lease agreement is arbitral.” But in the present case, the situation is entirely different as there is no allegation that the original agreement was in possession of the plaintiff-respondent and thus unavailable with the defendant-petitioner. Hence, it was obligatory upon the defendant-petitioner to place on record either original or certified copy of the agreement in view of the law laid down by Hon'ble Supreme Court in Atul Singh's case (supra), which is rather subsequent to the Bharat Sewa Sansthan's case (supra). On this ground alone, the present petition is liable to be dismissed. There is another aspect of case in hand i.e that admittedly after passing of the impugned order dated 15.1.2010, the defendant-petitioner had filed its written statement dated 24.2.2010 and issues have already been framed by the learned trial Court on 15.3.2010 and, therefore, the defendant-petitioner has submitted to the jurisdiction of the learned trial Court. The contention in para No.8 of the petition that written statement was filed by one Kuldeep Yadav, Manager of the petitioner-Company without informing its Director is fallacious as the same is filed through Sh. J.S. Chauhan, Advocate, who was very much representing the defendant- petitioner at the time of passing of the impugned order also. Therefore, it does not behove the petitioner to make such a baseless averments. Further more, there is nothing on record to substantiate that the defendant-petitioner has taken any action against the said Manager for filing the written statement through counsel Sh. J.S. Chauhan unauthorisedly. Thus, having chosen voluntarily to submit the jurisdiction of the learned trial Court, it C.R.No.7889 of 2010 #7# will not be appropriate at this stage to make a grievance to refer the matter for arbitration. Section 9 of the CPC makes it abundantly clear that all suits of civil nature shall be tried by Civil Courts until and unless the same is either expressly or impliedly barred. In the present case, there is nothing on record to prove that the jurisdiction of learned trial Court is barred to try the suit for specific performance of agreement dated 10.3.2006. Even as per Clause 14 of the said agreement, it cannot be inferred that the jurisdiction of the Civil Court is barred rather the Clause only says that in case of any dispute or differences, the same shall be referred to arbitration in terms of the Act. Therefore, it does not mean that by virtue of consent given in Clause 14, the jurisdiction of Civil Court shall be barred. As the law is well settled that neither jurisdiction can be conferred nor the same can be taken away merely by the consent of the parties if the court is otherwise having the jurisdiction under law. In the present case, the civil suit is filed for specific performance of contract under the provisions of Specific Relief Act and thus the learned trial Court is very much having jurisdiction to try the suit in view of the provisions of Section 9 of the CPC, and even otherwise in such matters, in my opinion, it is the Civil Courts, which are better equipped to decide such issues. Accordingly, keeping in view the facts and circumstances discussed hereinabove, no illegality or perversity can be found with impugned order dated 15.1.2010 (P.4) passed by the learned Civil Judge (Sr. Division), Rewari warranting interference under Article 227 of the Constitution. Dismissed. July 28th, 2011 ( JASWANT SINGH ) manoj JUDGE