Prasenjit Mandal, J.@mdashThis application is at the instance of the Plaintiff and is directed against the Order No. 31 dated December 2, 2010 passed by the learned Civil Judge (Senior Division), Malda in other Case No. 210 of 2008.
2. The Petitioner instituted a suit for eviction against the opposite party in respect of the premises as described in the schedule of the plaint before the learned Civil Judge (Senior Division), Malda and the said suit was registered as O.C. No. 210 of 2008. The opposite parties entered appearance and filed an application u/s 8 of the Arbitration and Conciliation Act, 1996 (henceforth shall be referred as ''the said Act'') contending, inter alia, that there is a clause for arbitration and as such the suit is not maintainable. Upon hearing both the parties, the learned Trial Judge has allowed the application u/s 8 of the said Act. Being aggrieved by this order, the Plaintiffs have come up with this revisional application.
3. The point involved in this revisional application is whether the impugned order should be sustained.
4. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the dispute is as to the compliance of Section 8(2) of the said Act. Mr. P.P. Roy appearing for the Petitioner has vehemently raised objection that as per provisions of Section 8(2) of the said Act, the opposite parties were required to file the original agreement or a certified copy thereof in support of their application. Since, the opposite parties having not complied with such mandatory provision, the said application was not maintainable and as such the impugned order should not be sustained.
5. On the other hand, learned Advocate for the opposite party submits that both the parties are aware of the said agreement and as such when a xerox copy of the same is filed, it is enough for compliance. The learned Advocate for the opposite party has also relied upon the decisions of
6. Having considered the submission of the learned Advocates of both the sides, I am of the view that in order to appreciate the provision of Section 8(2) of the said Act, the Section 8 is quoted below:
Power to refer parties to arbitration where there is an arbitration agreement.- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in Sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under Sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
7. Therefore, the Act itself provides production of the original copy or the certified copy of the same. The Defendants / opposite parties did not comply with such decisions.
8. Mr. Roy appearing on behalf of the Petitioners has referred to the decision of
9. The copy of the plaint has been filed as Annexure-''A'' to the application and on perusal of the copy of the plaint, I do not find any term of agreement as contended by the Defendants. The plaint simply lays down that the Defendants are defaulter in payment of rend for the premises mentioned in the plaint and as such the recovery of possession and other relief''s have been sought for. Therefore, on perusal of the plaint, I find that there is no whisper as to the agreement entered into between the parties and so there is no question of arbitration clause at all on perusal of the plaint. Therefore, the burden lies heavily upon the Defendants to prove the compliance of Section 8(2) of the said Act.
10. So far as the decision of Branch Manager, M/s. Magma Leasing & Finance Ltd. and Anr. (supra) is concerned I find that this decision clearly lays down that the pre-requisite conditions u/s 8, must be satisfied. No option is left to the Court and the Court has to refer to parties to arbitration. Therefore, the pre-requisite condition, that is, the compliance of Section 8(2) of the said Act must be done. Thereafter, no option is left to the Court and the Court has to refer the parties to arbitration if arbitration clause is proved. Since, the Defendants have failed to comply with the requisite conditions u/s 8(2) of the Act, I am of the view that the Defendants have failed to prove the pre-requisite conditions. Therefore, these decisions will not come to the help of the opposite parties at all. So, this decision will not be applicable.
11. So far as the decision of ITC Classic Finance Ltd. v. Grapco Mining and Co. Ltd. and Anr. (supra) is concerned I find that in that case, the Plaintiff also relied on the selfsame agreement and as such this Hon''ble Court observed that the Court has to see, if the matter of said is subject of arbitration agreement. In the instant case, the Plaintiff having made no whisper as to the agreement entered into between the parties, I am of the view that this decision is not applicable in the instant case.
12. In view of the above observations, I am of the opinion that the mandatory requirement of Section 8(2) of the said Act has not been complied with and that the conclusion arrived at by the learned Trial Judge cannot be supported. The learned Trial Judge has committed errors of law in allowing the application. So, the impugned order requires to be set aside.
13. This revisional application is, therefore, allowed. The impugned order is hereby set aside.
14. Considering the circumstances, there will be no order as to costs.
15. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
