MAHESH KUMAR Vs. RAJASTHAN CORPORATION

JUDGEMENT

(1.) Heard learned counsel for the petitioner. Brief facts of the case are that a suit was filed by the Rajasthan State Transport Corporation against the petitioner for recovery of Rs. 73.554/-. The defendant petitioner Instead of applying for the reference to the arbitration, submitted written statement and in the written statement took a plea that the suit of the plaintiff is barred by law as there is an arbitration clause in.the contract on the basis of which the plaintiff Is seeking the relief in the suit. The trial Court framed issues Nos. 3 and 4 as the pleas were taken by the defendant in the written statement about the maintainability of the suit. The trial Court decided two Issues against the petitioner-defendant on the ground that no application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred as 'the Act of 1996) has been filed by the defendant and secondly the defendant has not produced the original copy of the arbitration agreement.

(2.) According to learned counsel for the petitioner, the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. M/s. Pinkcity Midway Petroleum, 2003 SOL Case No. 387: (AIR 2003 SC 2881) held that once it is found that agreement between the parties contains a clause for arbitration, the jurisdiction of the Civil Court in such matters is barred and Hon'ble Supreme Court in the same Judgment held that if Civil Court dismisses an application under Sections 8 and 5 of the Arbitration Act for referring the dispute to the arbitration, revision under Section 151, CPC is maintainable. It is also submitted by learned counsel for the petitioner that original arbitration agreement was filed by the plaintiff himself and, therefore the Court below committed serious error of law in holding that the agreement should have been filed by the defendant-petitioner.

(3.) I considered the submissions of learned counsel for the petitioner and perused the facts of the case and the reasons given by the Court below. It is clear from sub-section (1) of Section 8 of the Act of 1996 that it provides that if a party applies for referring the matter to the arbitration then and then only the Court can refer the matter to the arbitration, the core question is that whether the party can apply under Section 8 for referring the matter for arbitration only by moving an application under Section 8 of the Act of 1996 or can pray for such relief in the written statement.