1. This summons for judgment is taken out in a summary suit praying for a money decree in the sum of about Rs.54.46 crores by way of principal amount and over Rs.40 crores towards interest. Simultaneously with its application for leave to defend, the Defendant has taken out an application under Section 8 of the Arbitration and Conciliation Act, 1996 (“the Act”) for reference of the parties to arbitration. This application is on the ground that the subject matter of the present summary suit is covered by an arbitration agreement between the parties.

2. Since the Court has before it two proceedings, namely, a summons for judgment seeking a decree against the Defendant and an application for reference of the parties to arbitration under Section 8 of the Act, the latter application will have to be taken up first. The application for decree in the form of summons for judgment can only be considered if the Court rejects the application under Section 8. Let me, therefore, take up Notice of Motion No.126 of 2018.

3. It is the case of the Applicant-Defendant in this notice of motion that the disputes between the parties arise out of two agreements, namely, (i) the agreement dated 05 February 2010 (Exhibit C to the plaint) described otherwise in the plaint as 'Logistics Agreement' read with the Addendum dated 17 September 2010 (Exhibit D to the plaint), and (ii) 'Product Purchase Agreement' dated 15 April 2010 (Exhibit F to the plaint). It is submitted that these two are overarching agreements under which the Plaintiff-Respondent placed various purchase orders on the Defendant and pursuant to which goods were sold and delivered by the latter to the former, for the value of which the present commercial suit is filed. It is submitted both these agreements have an arbitration clause contained in them and accordingly the subject matter of the present suit is covered by arbitration agreement

4. The application is objected to by the Plaintiff-Respondent on a number of grounds. Learned Counsel for the Plaintiff-Respondent, in the first place, submits that the application does not comply with the requirements of Section 8(1) of the Act inasmuch as it is not filed before submitting the first statement of defence. Learned Counsel submits that the present suit being a summary suit, filed before the Commercial Division, the Defendant's application for leave to defend must be considered as its first statement of defence. Learned Counsel also submits that the application does not comply with the requirements of Sub-Section (2) of Section 8 inasmuch as there is failure on the part of the Applicant-Defendant to file original or certified copy of the arbitration agreement along with the application. Learned Counsel further submits that even on merits, the subject matter of the present suit is not covered by the arbitration agreements as alleged by the Applicant-Defendant. Learned Counsel submits that the suit is not based on a liability arising out of the underlying contracts, which contain the arbitration agreement, but on an express balance reconciliation statement jointly signed by the parties. Learned Counsel submits that such a statement by itself furnishes a cause of action on which a suit could be founded.

5. Let us first dispose of the two minor objections to the present application. The first is on account of non-filing of either the original or certified copy of the arbitration agreement along with the application. It is submitted that for that reason the application cannot be entertained, by virtue of the mandate of subsection (2) of Section 8 of the Act. The Supreme Court has explained the meaning of the expression “shall not be entertained” used in subsection (2) of Section 8 in the case of Ananthesh Bhakta vs. Nayana S. Bhakta, (2017) 5 SCC 185. As explained by the Supreme Court, the original arbitration agreement, or its duly certified copy, can be brought on record, if not originally filed with the application, when the Court is co