An application for reference of the dispute to the arbitrator under the Arbitration and Conciliation Act, 1996, has to be made before the filing of the first statement and since in the application filed on 9-9-96 no such prayer to refer the dispute for arbitration was made, rather a prayer was made to dismiss the suit on the ground of limitation, the prayer could not be allowed.

1. This civil revision by the defendants is directed against an order by which the Court below has rejected their application for referring the dispute to the Arbitrator and stay of further proceedings in the suit.

2. The plaintiffs-opposite party, State of Bihar and its officials, filed Money Suit No.2 of 1995 for recovery of the price of 294.12 M.T. steel slabs equivalent to 264.715 M.T. of M.S. rod or its present market price According to the plaintiffs, the defendants had entered into an agreement for delivery / supply of 264.715M.T. of M.S. rod but failed to make the delivery causing pecuniary loss to the State. On 9-9-96 the petitioners filed an application to dismiss the suit as not maintainable on the ground of limitation. On 9-12-96 they filed another application under sec.8 of the Arbitration and Conciliation Act, 1996, describing the same as supp-lementary application to the application dated 9-10-96, wherein they made a prayer for appointment of the concerned Superintending Engineer as Arbitrator and to refer the dispute to him. I shall refer to these two applications again in this order. The Court below in the impugned order held that an application for reference of the dispute to the Arbitrator under the new Arbitration Act i.e. Arbitration and Conciliation Act, 1996, (hereinafter called the Act) has to be made before the filing of the first statement and since in the application filed on 9-9-96 no such prayer to refer the dispute for arbitration was made, rather a prayer was made to dismiss the suit on the ground of limitation, the prayer could not be allowed. He accordingly rejected the application by the impugned order dated 18-9-98.

3. Before proceeding further it would be apt to notice the provisions of Sec.8 of the Act so far as relevant, as follows :

"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-sec. (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof."Stated in simpler words, Sec. 8(1) requires that (a) there should be an application by a party for referring the dispute to the Arbitration, (b) such application should be filed not later than i.e.before filing the first statement by the party and (c) such statement should be on the substance of the dispute.

4. As stated above, in the present case the petitioners filed two applications on 9-9-96 and 9-12-96. In the second application he made a prayer to refer the dispute to the arbitrator. The question which arises for consideration, thus, is whether the first application dated 9-9-96 was "statement on the substance of the dispute".

5. Shri Ram Balak Mahto, learned counsel for the petitioners, referred to the provisions of the Order 6 Rules 2(1), 4 and 5, Order 7, Rules 1 and 2 and Order 8, Rules 1, 2 and 3 of the Code of Civil Procedure and submitted that the pleading is required to contain material facts and particulars of the claim of the plaintiffs or defence of the defendants, as the case may be. Where the material facts are not stated and the particulars of the claim or defence are not disclosed, the statement / application cannot be said to be pleadings of the party. And since in the present case in the application dated 9-9-96 no material fact was stated regarding the claim or defence, the prayer for reference of the dispute to the arbitrator made in the application dated 9-12-96 was not barred. Counsel placed reliance on Udhav Singh V/s. Madhav Rao Scindia, AIR, 1976,SC 744 and State of Orissa V/s. Klockner and Company AIR 1996 SC 2140. As regards interpretation of the clause statement on the substance of the dispute reliance was pla