KUTUBUDDIN AGARBATTIWALA Vs. AMEENA

JUDGEMENT

(1.) THIS order shall also govern the disposal of W.P.No.10723/2013 as in both the petitions the parties are one and same and the order under challenge is dated 18/6/2013 passed by II ADJ, Ujjain in civil suit No.53 -A/2013 whereby the application filed by the petitioner u/s 8 of Arbitration & Conciliation Act, 1996 (which shall be referred hereinafter as 'the Act') was dismissed.

(2.) FACTS of the case are that respondent Nos.1 and 2 filed a suit for declaration, partition and rendition of accounts and also for cancellation of agreement dated 28/12/2011 on the ground that document has been obtained by playing the fraud. After notice, an application was filed by the petitioners Kutubuddin and also by one Manabai who is petitioner in W.P.No.10723/2013 u/s 8 of the Act on the ground that alleged agreement dated 28/12/2011 is having a arbitration clause, therefore suit cannot proceed and matter be referred to the arbitrator. The application filed by the petitioner Manabai was also under Order VII Rule 11 CPC wherein it was prayed that suit be dismissed as suit is barred under the provisions of Arbitration & Conciliation Act. Both the applications were dismissed, hence these two petitions.

(3.) LEARNED counsel for petitioner submits that impugned order is illegal and deserves to be set aside. It is submitted that since there is an arbitration clause in the agreement itself, therefore if the respondent Nos.1 and 2 are having any grievance then they ought to have approached to the arbitrator instead of filing the suit. Learned counsel placed reliance on clause 6 of the agreement which reads as under: - <IMG>JUDGEMENT_161_LAWS(MPH)10_2013.jpg</IMG>