Gujarat High Court Nathisand Kalyasang vs Jasubha Dansangji on 18 February, 1972 Equivalent citations: AIR1973GUJ11, (1972)GLR996, AIR 1973 GUJARAT 11 ORDER 1. This Civil Revision Application No. 802 of 1970 is filed against the order dated 13th February, 1970, rejecting the application dated 13th January, 1970 filed by the defendant requesting the learned Civil Judge to refer the subjectmatter of Civil Suit No. 19 of 1968 to arbitration in view of arbitration agreement dated 4th January, 1970 entered into between the parties pending the suit. 2. Civil Suit No. 90 of 1968 was filed on 5th April, 1968. Pending the suit the plaintiff and the defendant entered into arbitration agreement with regard to subjectmatter of the suit on 4th January, 1970. On 13th January, 1970, the plaintiff filed application Ext. 25 along with arbitration agreement dated 4th January, 1970 and requested the learned Judge to pass an order of reference according to the agreement. The defendant resisted the said application and inter alia contended that he did not agree to refer to the matter to arbitration and, therefore, the order of reference should not be passed. The learned Civil Judge observed that in view of provisions of Section 21 of the Arbitration Act, 1940, in a pending suit, the Court can pass an order of reference only if all the parties in interested agree to refer the subjectmatter of the suit to arbitration and they play in writing to the Court for an order or reference. In the present case there was an arbitration agreement with regard to the subjectmatter of the suit between the parties,. but the application for passing order of reference was made by the plaintiff alone and the defendant a opposed the said application. the defendant did not consent for passing order of reference. Therefore, on order could be passed. The leaned civil Judge rejected the application by order dated 13th February, 1970. 3. The present revision application is filed by original plaintiff against the aforesaid order dated 13th February,. 1970, rejected application filed by the plaintiff for passing order of reference for arbitration with regard to subjectmatter of the suit. In the present case the suit was filed on 5th April, 1968. the plaintiff and the defendant entered into arbitration agreement on 4th January, 1970 with regard to subjectmatter of the suit pending the hearing of the suit. chapter II of the Arbitration Act deals with arbitration without intervention of a count. chapter III deals with arbitration with intervention of a Court where there is not suit pending. Section 20 of the Arbitration Act provides where any persons have entered into an arbitration agreement before the institution of any suit with respect other subjectmatter of the agreement or any part or fit, and where a difference has arisen to which the agreement applies they or any of them instead of proceeding under chapter, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be file din Court. Subsection (2) of the Section 20 of the Act provides that the application shall be interest as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or, it otherwise, between the applicant as plaintiff an other parties ad defendants. Subsection (3) of Section 20 provides that the Court shall direct notice of such application to be given to all the parties to the agreement other than the applicants, requirement them to show cause within the time specified in the notice why the agreement should not be filed. Subsection (4) of Section 20 provides that where no sufficient cause is show, the Court shall makes an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon the arbitrator, to an arbitrator appointed by the Court. Subsection (5) of Section 20 provides that the arbitration shall proceed in the accordance with, and shall be governed by, the other provisions of the Act so far as they can be made applicable. From the provisions of Chapter II and III of the Arbitration Act it is seen that where any person have entered into an arbitration agreement before the institution of any suit with respect to the subsection of the agreement of any part of it and where a difference has arises to which the agreement, applies, it is open to the parties or any party to the agreement to proceed under chapter II of the Act, or to make an application under Section 20 of the chapter III of the Act. However, if any legal proceeding are commenced by an party to an arbitration agreement any party to such legal proceedings may at any other party to the agreement such legal proceedings may at any time before filing the written statement or taking any other steps in the proceeding apply to the judicial authority befo