IMPORTANT POINT
An appeal is maintainable under Section 37(1)(a) of the Arbitration and Conciliation Act, 1996 against an order rejecting a request to refer parties to arbitration under Section 8.

JUDGMENT/ORDER

1. Rule. Rule made returnable forthwith. With the consent of the parties, taken up for final hearing.

2. Judgment and order dtd. 30/6/2022 passed by the Additional Sessions Judge, Thane dismissing Regular Civil Appeal No. 64/2017 filed by the petitioner is the subject matter of challenge in present petition. The Appeal was filed challenging order dtd. 12/1/2017 passed by 11th Jt. Civil Judge Senior Division, Thane rejecting petitioner's application filed under Sec. 8 of the Arbitration and Conciliation Act, 1996 ("Arbitration Act").

3. Petitioner is a subsidiary of Indian Oil Corporation Limited and had floated Notice inviting tender for 'Supply and Services of Instrumentation Works'. A purchase order dtd. 20/6/2008 was issued by petitioner in favour of respondent and a Contract Agreement was executed between the parties on 13/10/2009. It appears that the work was completed and Work Completion Certificate was issued. The respondent filed Summary Suit No.91/2014 in the Court of Civil Judge Senior Division, Thane for recovery of amount of Rs.63, 51, 494.00 from petitioner alongwith interest of Rs.12, 37, 236.00.

4. An application under Sec. 8 of the Arbitration Act was filed by petitioner in the suit praying for dismissal of the Summary Suit by referring the same to arbitration as per the arbitration clause in the contract. The trial Court proceeded to reject Sec. 8 application by its order dtd. 12/1/2017. Petitioner filed Regular Civil Appeal No. 64/2017 in the District Court, Thane challenging the order rejecting Sec. 8 application. By impugned judgment and order dtd. 30/6/2022, the District Court has held the Appeal to be not maintainable and has proceeded to dismiss the same.

5. Mr. Modi, learned counsel appearing for petitioner, would draw my attention to the arbitration clause being Clause 9.0.0.0 of the general conditions of contract. He would submit that petitioner had rightly filed an application under Sec. 8 of the Arbitration Act for referring the disputes to arbitration. That in the event of rejection of application under Sec. 8, a remedy is provided under Sec. 37 of the Arbitration Act to file an appeal. He would contend that therefore Regular Civil Appeal No. 64/2017 was rightly filed by petitioner which was clearly maintainable in view of the provisions of Sec. 37 of the Arbitration Act. He would submit that the District Court has erroneously held that no Appeal is provided under Sec. 37(1) of the Arbitration Act.

6. Per-contra, Mr. Amanchi the learned counsel appearing for the respondent would oppose the petition and support the order passed by the District Court. He would submit that the petitioner did not clarify the exact provision under which Regular Civil Appeal No. 64/2017 was filed by it. He would submit that the said Appeal was filed under the provisions of Order 43 of the Code of Civil Procedure which was clearly not maintainable. He has also made submissions with regards to the merits of the matter to show how the respondent is lawfully entitled to the amounts claimed in the summary suit.

7. Having heard the learned counsels for parties and after perusal of the order passed by the District Court, it is difficult to comprehend as to how the District Court has arrived at a conclusion that an Appeal under Sec. 37 of the Arbitration Act challenging order of rejection of Sec. 8 application would not be maintainable. The finding recorded by the District Court in paragraphs-16, 17 and 19 of the order are reproduced below :

"16. The third limb for consideration is whether appeal is provided against order under Sec. 8 in the Act, 1996. Sec. 37 of the Act, 1996 speaks above appellable orders. This Sec. provided appeals against order under Sec. 9 and 34 of the Act, 1996. It has not provided appeal against order under Sec. 8."

17. The net result from the aforesaid reasons is that against the impugned order no appeal is provide either under Order 41 and 43 of the C.P.C. or under Sec. 37 of the Act, 1996.

19. T