S.N.Hussain, J.

1. Heard learned counsel for (he parties. The petitioners are defendants of Title Suit No. 208 of 2003, which was filed by the plaintiff-opposite party for declaration that the plaintiff was entitled to realise Rs. 50,000.00 per month from the defendants-petitioners as compensation since 11 3-2003 according to the terms of agreement dated 10-3-2000 and 29-5-2001 executed by defendant No. 1 and for directing them to go on paying the compensation at the said rate each month to the plaintiff till handing over the possession of the plaintiffs portion of the apartment constructed by the defendants.

2. The defendants-petitioners are aggrieved by order dated 17-12-2004 passed in the aforesaid suit, by which learned Subordinate Judge-VIII, Patna rejected their petition filed u/s. 5 read with sec. 8 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996 for the sake of brevity) for referring the suit to the Arbitrator for final adjudication.

3. Learned counsel for the defendants petitioners has submitted that the plaintiff-opposite party is the land owner, whereas the defendants-petitioners are the Developers and they entered into a Development Agreement on 10-3-2000 with respect to the land of the plaintiff. He has further stated that the said agreement was modified by another agreement dated 29-5-2001, which was to be part of the earlier agreement, for extension of the time of 2 and 1/2 years agreed in the previous agreement by further six months and if by that time the land owners constructed portion is not handed over to him, then the Developer will have to pay Rs. 50,000.00 per month to the land owner until such possession is given to him. The arbitration clause was included in paragraph 33 of the original agreement and it was stated that in case of any doubt or dispute between the land owner and the Developer, they would solve the said problem by appointment of an Arbitrator under the provisions of Arbitration Act, 1940 (hereinafter referred to as the Act of 1940 for the sake of brevity). Hence he averred that if there was any dispute or dissatisfaction the land owner should have referred the matter to an Arbitrator and there was no occasion for him to file the instant suit.

4. Learned counsel for the petitioners further submitted that even according to the case of the plaintiff-opposite party the construction works were to be completed within three years from the first agreement i.e. by 10-3-2003 and the construction was completed within the said prescribed time but due to the further demand of the land owner for additional facilities in his portion worth more than rupees one lac, possession was not taken by him. Hence he staled that there is no delay on the part of the Developer and he is not liable to pay any compensation as mentioned above. He also submitted that the Apex Court in the case of Hindustan Petroleum Corporation Ltd. V/s. Pinkcity Midway Petroleums reported in - has specifically held that in such cases civil Court had no jurisdiction and the matter should have been referred to the Arbitrator. Hence he submitted that: the suit in question was not maintainable and all the questions raised were to be decided in arbitration,

5. The claim of the defendants-petitioners is also that the learned Court below passed the impugned order on the frivolous assumption that since the agreement was executed on 10-3-2000 and even if the period added by modification is counted it was valid till 10-3-2003 i.e. within three years, hence its clauses were not effective after that date and were not binding upon the parties and that since the dispute arose after expiry of the said fixed period, there was no occasion for Arbitration and the civil Court had jurisdiction to decide such matters. In this connection learned counsel for the petitioners referred to Sections 5 and 8 of the Act of 1996 in which it is provided that in matters governed by that Part, no judicial authority shall int