Vinod K. Sharma, J.@mdashThe present revision petition has been filed against the order dated 8.10.2004 passed by the learned Civil Judge (Sr. Division), Panipat vide which application moved by the respondent defendants u/s 8 of the Arbitration and Conciliation Act, 1996 was allowed and the parties were referred to arbitration in terms of clause as mentioned in the tender document.
2. The plaintiff-petitioner filed a suit for recovery of amount due for the work done. On notice having been issued, the defendant-respondents appeared in the Court and filed an application u/s 8 of the Arbitration and Conciliation Act, 1996 claiming therein that in view of the existence of Arbitration Clause in the agreement arrived at between the parties, the Court was bound to refer the matter to Arbitration. The said application was accompanied by the contract entered into between the parties1 as well as the General Conditions of the Contract. The learned Civil Judge (Sr. Divn.), Panipat allowed the application by placing reliance on the Arbitration Clause in the General Conditions of the contract.
3. The learned Counsel appearing on behalf of the petitioner referred to the Contract executed between the parties on 9.4.1999. The contention of the learned Counsel for the petitioner was that the contract entered into between the parties was complete contract and the same did not contain any arbitration agreement and, therefore, the contention of the learned Counsel for the petitioner was that the learned Court below was in error in referring the matter for arbitration. However, the learned Counsel appearing on behalf of the respondents supported the order passed by the learned Civil Judge (Sr. Division), Panipat. For this purpose he has placed reliance on the General Conditions of the Contract which is said to be part and parcel of the contract entered into between the parties. The contention of the learned Counsel for the respondents was that Clause 1.1 of the Contract stipulates that the documents mentioned under the said clause would constitute the contract document and Clause 1.1(b) would cover the General instructions to the tender which clearly contains the arbitration clause and therefore, the learned Court below was right in allowing the application moved by the petitioner. However, in support of this contention, the General conditions as amended in the year 2003 were placed on record whereas the contract between the parties was entered into on 8.4.1999. In this view of the matter, it cannot be said that provisions of Section 8 were complied with and arbitration (agreement) has entered into between the parties was placed on record. Even otherwise, the reading of the contract does not stipulate the arbitration Clause between the parties. Section 7 of the Arbitration and Conciliation Act, 1996 defines the arbitration agreement to be as under:
7. Arbitration agreement.-(1) In this part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a deemed legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contractor or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in-
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which existence of the agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
4. In order to constitute arbitration agreement a signed copy of the General Conditions of Contract or should have been attached to the signed contract and placed on record. Consequently, it has to be held that the respondent-defendants had failed to produce any arbitration agreement as entered into between the parties on record so as to invoke the provisions of Section 8 of the Arbitration and Conciliation Act, 1996.
5. Thus, the order passed by the learned Court below cannot be sustained. Accordingly, this revision is allowed, impugned order is set aside and the learned trial Court is directed to proceed wkh the suit on merit, in accordance with law.
