IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 21541 of 2009(O) -------------------------- OS.118/2007 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER(S): ------------------------- RAFEEQUE,S/O.POKKER HAJI,BUSHARA MANZIL, KOOTHUPARAMBA.P.O,KANNUR DISTRICT. BY ADV. MR.CIBI THOMAS RESPONDENT(S): --------------------------- 1. THE BRANCH MANAGER,TATA MOTORS LTD, SOUTH BAZAR,KANNUR. 2. TATA MOTORS LTD,BOMBAY HOUSE, 24,HOMI MODY STREET,MUMBAI-400 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.21541 OF 2009 -------------------------- Dated this the 3rd day of August 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue a writ of certiorari or any other appropriate writ order or direction, calling for the records relating to Ext.P4 and quash the original of the same. ii) To grant such other reliefs prayed for from time to time including cost of these proceedings. W.P.(C).No.21541 OF 2009 Page numbers 2. Petitioner is the plaintiff in O.S No. 118/2007 on the file of the Munsiff Court, Koothuparamb and the respondents are the defendants in that suit. Suit is one for perpetual prohibitory injunction to restrain the defendants from obstructing the plaintiff from operating a mini lorry purchased with the loan provided by the defendants. The defendants on appearance before the court contended that the Civil Court has no jurisdiction since under the terms of the agreement entered between the parties all disputes have to be resolved by arbitration as provided under the Arbitration and Conciliation Act, 1996. The agreement containing the arbitration clause as contended by the defendants was also produced. The learned Munsiff after examining the agreement and hearing the counsel on both sides arriving at the conclusion that there is an arbitration clause in the agreement for resolving the disputes, passed W.P.(C).No.21541 OF 2009 Page numbers Ext.P4 order referring the parties to arbitration under Section 8(1) of the Arbitration and Conciliation Act. Propriety and correctness of that order is challenged in the petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondents is necessary and hence it is dispensed with. It is contended by the learned counsel before me that the 'judicial authority' in Arbitration and Conciliation Act 1996 takes within its ambit a Munsiff as well and as such it is competent for the Munsiff to decide the question whether there is an arbitration clause or not in the agreement to resolve the disputes raised by the plaintiff that W.P.(C).No.21541 OF 2009 Page numbers there is no arbitration agreement I am afraid the contention so advanced is repugnant to the provisions of the Arbitration and Conciliation Act, 1996. The learned Munsiff was not correct in observing in Ext.P4 order which is under challenge as to the reference made to the arbitration as he is incompetent to do so. No reference to arbitration can be made by the Munsiff or by the District Judge but only by a judicial authority as covered by Section 11 of the Arbitration Act. When a challenge is raised that there is an arbitration agreement ousting the jurisdiction of the court, needless to point out, if that challenge is raised at the appropriate stage, then, necessarily after examining the agreement, the Civil Court has to enter a finding on that question and if it finds that there is an arbitration agreement it has to drop the proceedings. There is no question of reference to the arbitration by the Civil Court. W.P.(C).No.21541 OF 2009 Page numbers Further more, the question whether or notthere is an arbitration clause in the agreement can also be gone into by the arbitral tribunal as provided under Section 16 of the Arbitration and Conciliation Act 1996. I do not find any impropriety or illegality in the order passed by the Munsiff except to the extent mentioned above as to the reference to arbitration made under that order. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv