M.Y Eqbal, J.:— These three civil revision applications arise out of an order dated 18.7.1996 passed by learned Sub-Judge I, Patna in Title Suit No. 123 of 1996, Title Suit No. 124 of 1996 and Title Suit No. 125 of 1996 whereby and whereunder learned court below rejected the petition filed by the defendants-petitioners raising a preliminary objection with regard to maintainability of the suit. Since the party in all the aforesaid suits are same, these three civil revision application are being disposed of by this common order.
2. The plaintiff R.L Singh filed the aforementioned three suits under Section 8 of the Arbitration and Conciliation Ordinance, 1996 praying therein to refer the claims/disputes mentioned in Schedule-I of the plaint/petition to the appointed sole arbitrator Sri T.K Mishra, Ministry of Urban Development, Calcutta, with a direction to arbitrate and give award. The plaintiff's case, in short, was that the defendants did not refer the disputes and difference sought to be referred for arbitration regarding two important claims which were left out by the defendant no. 2. Notices of the aforesaid suits were issued to the defendants-petitioners who appeared and filed their written statements and contested the case of the plaintiff and prayed for dismissal of the suit. A separate petition was filed by the defendants-petitioners raising preliminary objections regarding maintainability of the said suit. The maintainability of the suit was challenged by the petitioners on two grounds. Firstly, the plaintiff has not complied with the requirement of Section 8 of the Arbitration and Conciliation Ordinance, 1996 as no original agreement or certified copy of the same was filed along with the petition and, consequently, no notice under Section 80 of the Code of Civil Procedure was served on the defendants-petitioners before filing the aforesaid suits.
3. Mr. Anil Kumar Jha, learned counsel appearing on behalf of the petitioners, firstly, submitted that learned court below has failed to consider that the Sub-Judge has no jurisdiction to entertain the application filed by the plaintiff-opposite party under Section 8 of the said Ordinance. Learned counsel submitted that under the ordinance only the District Judge shall be deemed to be the court and application will lie only before that court and not before any other court. Learned counsel then submitted that Section 8(2) of the said ordinance is mandatory and in absence of arbitration agreement the application filed under Section 8 of the ordinance was liable to be rejected in limine.
4. On the other hand, Mr. Jashawir Singh Arora, learned counsel appearing on behalf of the opposite party submitted that there was no illegality in the order passed by learned court below. Learned counsel submitted that there was a compliance of Section 8(1) of the ordinance in as much as a photocopy of the certified copy of the agreement was filed by the plaintiff opposite party. Learned counsel further submitted that existence of the arbitration agreement was not denied and disputed by the defendants-petitioners and, therefore, application under Section 8 was rightly entertained by the learned court below. Learned counsel further submitted that proceeding under Section 8 of the Arbitration Act cannot be said to be a proceeding in a suit and, therefore, service of notice under Section 80 of the Code of Civil Procedure was not necessary.
5. First of all, I will take up the point raised by the defendants petitioners that the application under Section 8 is not maintainable in the court of Subordinate Judge, Patna. According to learned counsel the court means principle civil court of original jurisdiction which is the District Judge and not a court inferior to the District Judge. There is no substance in the submission of Mr. Anil Kumar Jha, learned counsel appearing on behalf of the petitioner. Section 2(e) of the Arbitration and Conciliation Ordinance, now Arbitration and Ordinance Act defines the word court as under:
“Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court or any Court of Small Causes.”
6. From bare perusal of the definition it is clear that it means a principal Civil Court of original jurisdiction and also the High Court to which an appeal lies from the award of the Court, it can mean only Court having civil jurisdiction over the subject matter of reference. Of course, the expression “Civil Court” as used in this section does not include the revenue Court. Under the Bengal, Agra and Assam Civil Courts Act, 1987, the Court of Subordinate Judge is a Civil Court having original jurisdiction. I am, therefore, of the opinion that application under Section 8 of the said ordinance, 1996 (now Act) was maintainable before the learned Sub-Judge who is a Civil Court of original jurisdiction.
7. The next point taken by the petitioners is that application under Section 8 ought not to have entertained by the court below as the application was not accompained by the arbitration agreement. According to learned counsel Sub-section (2) of Section 8 is mandatory. Section 8 of the said Act of 1996 reads as under:—
Section 8: 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.”
8. The word arbitration agreement has been defined in Section 2(b) according to which arbitration agreement means an agreement referred to in Section 7. Section 7 reads as under:
9. Section 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 defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract 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 the 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 the arbitration clause part of the contract.”
10. From the aforesaid section it is clear that arbitration agreement need not be in a prescribed form. The only requirement is that it should be in writing if it is in the form of a document. From the impugned order it appears that the plaintiff-opposite party filed a photo copy of the arbitration agreement and it was stated that the original copy of the agreement was filed in other suit.
11. Be that as it may, the existence of arbitration agreement has not been challenged by the defendants-petitioners. In that view of the matter, I am of the opinion that the submission of learned counsel on this point has no leg to stand.
12. Having regard to the facts and circumstances of the case, I am of the opinion that there is no illegality or infirmity in the orders passed by the learned court below in the aforesaid suits. All these civil revision applications have, therefore, no merit which are, accordingly, dismissed.
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