C.R.No.4298 of 2010 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.4298 of 2010 Date of decision: 21.7.2011 Larsen & Tourbo Limited ….Petitioner Vs. Hardial Singh ….Respondent CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Rajnish Narula, Advocate for the petitioner. Mr. Rajan Bansal, Advocate for the respondent. Jaswant Singh, J Defendant-petitioner has filed the instant petition under Article 227 of the Constitution praying for setting aside the impugned order dated 5.10.2009 (P.4) passed by the learned Additional Civil Judge (Sr. Division), Barnala whereby their application filed under Section 8 of the Arbitration and Conciliation Act, 1996 (for short “Act of 1996”) has been dismissed; further prayer is for setting aside the order dated 11.5.2010 (P.5) passed by the learned Additional Civil Judge (Sr. Division), Barnala dismissing the application seeking condonation of delay in filing the review of the order dated 5.10.2009. Brief facts of the case are that the plaintiff-respondent filed a Civil Suit No.237 dated 7.9.2005 for recovery of Rs.99,76,284/- plus Rs.65,79,360/- on account of outstanding charges as depicted in the head note of the plaint. During the pendency of the suit, an application dated 25.1.2006 (P.2) under Section 8 of the Act of 1996 was filed by the C.R.No.4298 of 2010 #2# defendant-petitioner. Upon notice, the same was opposed by the plaintiff- respondent. After hearing both the sides, learned trial Court dismissed the said application in view of Sub Section (2) of Section 8 of the Act of 1996 vide order dated 5.10.2009. Thereafter review petition along with an application seeking condonation of delay was filed on 11.12.2009 but the same has also been dismissed by the learned trial Court vide order dated 11.5.2010, hence the present petition. After hearing learned counsel for the parties and perusing the paper book, this Court does not find any merit in the petition and the same deserves dismissal. Learned counsel for the petitioner argues that the impugned order passed by the learned trial Court is wholly erroneous and not sustainable in the eyes of law as there is an arbitration clause No.51 between the parties and as such in view of the said clause, the learned trial Court ought to have dismissed the suit being without jurisdiction. On the other hand, learned counsel for the respondent has supported the impugned order and argued that the same does not require any interference by this Court while exercising powers under Article 227 of the Constitution. A perusal of impugned order dated 5.10.2009 reveals that the application of the defendant-petitioner filed under Section 8 of the Act, 1996 has been dismissed due to the reason that the same is filed without annexing the original/certified copy of the agreement. In reply to the application under Section 8, it was specifically submitted by plaintiff-respondent that neither original agreement nor its certified copy has been annexed with the application and relevant part of C.R.No.4298 of 2010 #3# preliminary objection No.2 of the reply filed by the plaintiff-respondent reads as under: “The original agreement or duly certified copy thereof has not been annexed with the application. The defendant has wrongly mentioned in the application that a copy of the contract agreement is annexed and the same is marked as Annexure 'A'. In fact no copy of the contract agreement has been annexed with the application nor any document or alleged annexure 'A' has been filed with the application. No alleged contract agreement or its duly certified copy has been placed on the file nor the same annexed with the application.” Further in reply to para No.4, it has been specifically pleaded by the plaintiff-respondent, which reads as under: “In the agreement there is no clause of arbitration. The defendant has concocted a false story of arbitration clause. Even otherwise the cause of action for instituting the present suit arises from matters and issues which are not the subject matter of the alleged arbitration clause. The defendant has not produced the alleged original agreement or duly certified copy thereof with the application and the same have not been annexed with the application. The defendant has wrongly stated in the application that a copy of the conract agreement is annexed as Annexure 'A'. In fact no copy of the alleged contract agreement has been annexed with the application nor any annexure 'A' is attached or annexed with the application.” The defendant-petitioner is blowing hot and cold as in paragraph 2.10 of the present petition, it has specifically been submitted that the contract agreement was annexed along with the application filed under Section 8 but in paragraph 2.9, it is admitted that only first page of the Letter of Intent was available in the Court on record, the relevant part of which reads as under: C.R.No.4298 of 2010 #4# “That the petitioner immediately instructed its counsel to inspect the Court records and upon inspection of the same, it was learnt that only the first page of the Letter of Intent was available in the Court records and the rest of the pages containing the General terms and conditions as well as the Special Terms and conditions were missing in the Court records.” In view of the admission of the petitioner referred above that only first page of the Letter of Intent was available in the Court record and rest of the pages containing general terms and conditions as well as the Special Terms and conditions were not available in the court records, it can safely be concluded that neither original agreement nor its certified copy was annexed with the application under Section 8 of the Act of 1996. The law is well settled by Hon'ble the Supreme Court that provisions of Sub Section (2) of Section 8 of the Act of 1996 are mandatory and it is obligatory upon the applicant to annexe the original/certified copy of the agreement and in the absence of the same, no reference can be made to the arbitration. Reliance can be placed to a judgment of Hon'ble Supreme Court titled as Atul Singh & Ors v. Sunil Kumar Singh & Ors, 2008(2) SCC 602, the relevant of 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 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 C.R.No.4298 of 2010 #5# 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.” In these circumstances, this Court is of the opinion that the learned trial Court has rightly come to the conclusion that the defendant- petitioner has not attached original/certified copy of the agreement and in the absence of the same, the matter can not be referred for arbitration. So far as the prayer for condonation of delay in filing the review application is concerned, the same has rightly been rejected by the learned trial Court as no plausible explanation has been given in this regard. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned orders passed by the learned Additional Civil Judge (Sr. Division), Barnala warranting interference under Article 227 of the Constitution. Dismissed. July 21, 2011 ( JASWANT SINGH ) manoj JUDGE