(1.) The Judgment of the Court was as follows: The Court: The defendant in the suit has taken out this application Arbitration and Conciliation Act, 1996 dated March 12, 2008 under section 8 of the seeking an order referring the parties to arbitration on the ground that the dispute involved in the suit is covered by an arbitration agreement whereby both the parties are bound.

(2.) The plaintiff has filed opposition taking the ground that the application is not maintainable, since it was not accompanied by the original arbitration agreement or a duly certified copy thereof. It has taken a few more grounds questioning the maintainability of the application. It is also contending that the subject matter of the suit cannot be said to be a dispute covered by the arbitration clause referred to and relied on by the defendant.

(3.) In support of his contention that an application under section 8 not accompanied by the original arbitration agreement or a duly certified copy thereof is quite maintainable, if the application is accompanied by a xerox of the agreement containing the arbitration clause, Mr. Sen, counsel for the defendant, has relied on ITC Classic Finance Ltd. v. Grapco Mining and Co. Ltd. and Ann, AIR 1997 Cal 397, and Bharat Sewa Sansthan v. U.P. Electronics Corpn. Ltd., (2007)7 SCC 737, His submission is that the requirement of filing the original arbitration agreement or a duly certified copy thereof should be treated as a technical requirement, and hence on the ground that the application is accompanied only by a xerox of the relevant arbitration clause it should not be thrown out, especially when the plaintiff has not specifically questioned the genuineness of the document or existence of the arbitration clause. He has said that even if it is held that the application not accompanied by the original arbitration agreement or a duly certified copy thereof is not maintainable, it should not be dismissed, since the defendant is in a position to produce the original arbitration agreement by filing a supplementary affidavit.

(4.) Mr. Deb, counsel for the plaintiff, has submitted that in view of the law declared by the Supreme Court in Atul Singh and Ors. v. Sunil Kumar Singh and Ors., (2008)2 SCC 602 there is absolutely no scope to entertain the defendants application which is admittedly not accompanied by the original arbitration agreement or a duly certified copy thereof. According to him, since the application has been filed without complying with the mandatory provisions of section 8(2), there is no scope to permit the defendant to produce the original arbitration agreement or a duly certified copy thereof with a supplementary affidavit. His contention is that there is no reason to say that the requirement is of a technical nature.

(5.) In view of the question whether the application is entertainable at all, I think it will be appropriate to decide this question before entering into the merits of the application. If it is found that the application is not entertainable, in my opinion, in that case it will not be proper to express any opinion on the merits of the case, because even if the application is dismissed on the ground that it is not entertainable, the defendant will enjoy the liberty of filing an appropriate application complying with the provisions of section 8(2). For these reasons, I have decided to examine the question whether the application is at all entertainable.

(6.) The single Judge decision of this court in ITC Classic Finance Ltd. v. Grapco Mining and Co. Ltd. and Anr., AIR 1997 Cal 397 fully supports Mr. Sens contention that an application under section 8 not accompanied by the original arbitration agreement or by duly certified copy thereof, but only by a xerox of the agreement, is quite maintainable, The Supreme Court decision in Bharat Sewa Sansthanv. Uttar Pradesh Electronics Corpn. Ltd., (2007)7 SCC 737 also lends support to Mr. Sens argument that photocopies of the agreement filed