The burden to prove the existence of an arbitration agreement lies with the petitioner, and in the absence of evidence from either party, the suit must fail.

MARKANDEYA KATJU, C.J. :- This writ appeal has been filed against the impugned judgement of the ADJ dated 23-8-2005. Heard learned counsel for the petitioner and perused the record.

2. The facts have been set out in the judgement of the learned single Judge and hence we are not repeating the same.

3. It has been stated in para 12 of the impugned order that there was no arbitration agreement between the parties and hence the matter cannot be referred to the arbitrator. It was also stated that the claim was time barred.

4. We asked learned counsel for the petitioner to tell us whether the petitioner has produced any arbitration agreement he stated that he has not. He contended that the respondent should be directed to produce the arbitration agreement. The respondent denied that there is any arbitration agreement. A party cannot be compelled to prove the negative. When the respondent is denying that there was any arbitration agreement how can we direct him to produce it?

5. The burden to prove is on the petitioner and if he says that there is an arbitration agreement, it is for him to prove that. It is well settled that when neither the plaintiff nor the defendant lead evidence, the suit must fail, vide FCI v. M/s. Laxmi Cattle Feed Industries, JT 2006 (2) SC 552 : (AIR 2006 SC 1452).

6. For the reasons given above, the petition is dismissed.