V.K. Jain, J.

IA No. 4272/2011 (Under Section 8 of Arbitration and Conciliation Act)

1. This is a petition under Section 8 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) for referring the disputes raised by the Plaintiff for arbitration, in terms of the arbitration agreement between the parties.

IA No. 4272/2011 (Under Section 8 of Arbitration and Conciliation Act)

2. A perusal of the record would show that on suit summons being served on them, the Defendants appeared through counsel on 04th January, 2011 and it was directed that the written statement be filed within the prescribed period. The matter was adjourned to 02nd May, 2011. The written statement was filed on 25th January, 2011. Replication to the written statement was filed on 14th February, 2011. In replication, the Plaintiff relying upon the decision of Supreme Court in Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and Anr. AIR 2003 SC 2252, stated that the Defendants having already filed Written Statement and no application under Section 8 of the Act having been filed, the matter was not required to be referred to the arbitral tribunal. The application under consideration came to be filed on 22nd February, 2011.

3. A careful analysis of Section 8 of Arbitration and Conciliation Act, 1996 would show that the following conditions are required to be fulfilled before the Court can refer the matter to arbitration;

(a) the dispute between the parties should be subject matter of an arbitration agreement;

(b) one of the parties to the suit should apply for referring the parties to arbitration;

(c) the application should be filed on or before submitting first statement on the substance of the dispute and;

(d) the application should be accompanied by the original arbitration agreement or its certified copy.

4. In the case before this Court, the application under consideration having not been filed on or before filing of written statement, but having been filed about four weeks after the written statement had been filed and after 8 days of filing of replication, one of the pre-requisite conditions for referring the parties to arbitration under Section 8 of Arbitration and Conciliation Act does not stand fulfilled in this case.

5. In Sukanya Holdings (supra), Supreme Court, while interpreting Section 8 of the Act, inter alias, observed as under:

Further, the matter is not required to be referred to the arbitral Tribunal, if-

(1) the parties to the arbitration agreement have no filed any such application for referring the dispute to the arbitrator;

(2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or

(3) such application is not accompanied by the CS(OS) No. 1296/2010 Page 4 of 13 original arbitration agreement or duly certified copy thereof.

It is true that in the above-referred case, the application under Section 8 of Arbitration and Conciliation Act appears to have been filed before the written statement was filed and, therefore, the question as to whether such an application can be filed after the written statement has already been filed, did not directly come up for consideration in this case, but, the above-referred observations made by the Court do support the view that such an application cannot be filed after the first statement on the substance of the dispute has been filed by the applicant.

6. The contention of the learned Counsel for the applicant is that since the Defendant had already pleaded in the written statement that there is an arbitration agreement between the parties and, therefore, this Court has no jurisdiction to adjudicate the instant suit, it is evident that the applicants did not submit to the jurisdiction of the Civil Court and, therefore, the application is maintainable even after filing of the written statement.

7. In my view, if the Court accepts the contention that an application under Section 8 of the Act can be filed even after the first statement on su