S.J. VAZIFDAR, , J.

1. A Division Bench of this Court, by an order dated 13th March, 2012, directed the office to place the papers before the Chief Justice for appropriate orders. The Division Bench opined that the following question ought to be referred for consideration to a larger bench.

“Whether an appeal under the provisions of clause 15 of the Letters Patent, against an order passed by the learned Single Judge of this Court in a civil suit in an application filed in that civil suit because of the provisions of section 8 of the Arbitration and Conciliation Act, is maintainable or not ?”

The learned Chief Justice constituted this Full Bench and referred the above question to it.

2. We have held that an appeal against an order in an application under section 8 is not maintainable under clause 15 of the Letters Patent. Our conclusion is based on principle and on authority. It is based on our interpretation of the Arbitration and Conciliation Act, 1996 in the framework in which it now stands. It is also based on precedent. The precedents are under the Arbitration Act, 1940 and under the 1996 Act.

3. It is not necessary to deal with the merits of the case and it is sufficient to refer to the facts only briefly. The appellant filed the above suit to recover a sum of about Rs.4.19 crores together with interest from the first defendant. No relief has been claimed against the second and third defendants. The reference to the respondent / defendant in this judgment will be to respondent No.1 / defendant No.1. The respondent filed the above Notice of Motion for an order that the disputes raised in the suit be referred to arbitration in accordance with the arbitration agreement between the parties as stipulated in the sales contracts dated 28th April, 2010, and for an order terminating the above suit. In the affidavit in support, the respondent stated that the Notice of Motion was also for an order referring the parties to arbitration in view of the arbitration agreement.

The learned single Judge granted the prayers in the Notice of Motion. The above appeal is filed against that order.

4. The respondent raised a preliminary objection as to the maintainability of the appeal. The respondent contended that the appeal is not maintainable in view of section 37 of the Arbitration & Conciliation Act, 1996. The Division Bench, after recording the submissions and noting the authorities relied upon, passed the said order dated 13th March, 2012, which ultimately lead to the present reference. The contentions raised before the Division Bench were reiterated before us.

5. Several High Courts, have taken the view that an appeal against an order under section 8 of the Act is not maintainable. We are in respectful agreement with the judgments. Dr. Saraf, the learned counsel appearing on behalf of the appellant, however, submitted that none of the judgments have considered his submissions before us. He invited us to take a different view, also on the ground that most of these judgments relied upon the judgments rendered under the Arbitration Act, 1940. This, according to him, is impermissible, both on authority and in principle.

6. Sections 8 and 37 of the Arbitration and Conciliation Act, 1996, read as under :

“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.

37. Appealable orders.-(1)