IA No. 12666 of 2016 (of D-1 u/S 8 of Arbitration & Conciliation Act, 1996)

1. The applicant/defendant No.1, before filing first statement on the substance of the dispute, has filed this application for disposal of the suit by reference to arbitration.

2. The counsel for the plaintiff/non-applicant appears on advance notice and considering the nature of the application, need for reply is not felt and the counsels have been finally heard thereon.

3. The plaintiff/non-applicant has instituted the suit for recovery of Great Britain Pounds (GBP) 257, 247.39 with interest from the two defendants jointly and severally.

4. The applicant/defendant No.1 has filed this application pleading that the subject matter of this suit is subject of an arbitration agreement between the plaintiff/non-applicant and the applicant/defendant No.1.

5. Though Section 8(2) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) provides that the application shall not be entertained unless it is accompanied by the original arbitration agreement or by a duly certified copy thereof but the instant application is not accompanied with the original arbitration agreement or any certified copy thereof.

6. It has as such been enquired from the senior counsel for the applicant/defendant no.1 as to why the application should be entertained.

7. The senior counsel for the applicant/defendant No.1 states that the need to file the arbitration agreement was not felt since the plaintiff/non-applicant has already filed the same.

8. Arbitration Clause is mostly contained in the contract from which the suit arises and which contract, again mostly, is filed by the plaintiff. Section 8(2) however uses a peremptory language, making it mandatory for the application under Section 8(1) to be accompanied with the original arbitration agreement or certified copy thereof and bars the application from being entertained if not so accompanied with original arbitration agreement or certified copy thereof. The only inference is that even if the plaintiff has filed the arbitration agreement, the application under Section 8(1) will not be entertained if not compliant with Section 8(2).

9. The application is thus liable to be rejected.

10. However since the same will not come in the way of the defendant no.1 applying again, after complying with Section 8(2), and because there are several judgments to the contrary, it is deemed expedient to also adjudicate the application on merits.

11. The claim of the plaintiff/non-applicant in the suit is on the facts below mentioned:

(i) that the defendant No.2 Mr. Aditya Bahl being the Director of the applicant/defendant No.1 represented to the plaintiff/non-applicant that he is the pioneer in the world of providing air chartered services and that he fully controls the applicant/defendant No.1;

(ii) that the plaintiff/non-applicant on the basis of representations made by the defendant No.2/non-applicant signed “Acceptance Contract” dated 8th July, 2016, at pages 124 and 137 of Part-III file, sent by the defendant No.2/non-applicant and paid advance monies to the defendant no.1/applicant;

(iii) that the defendants however after receiving advance from the plaintiff/non-applicant enhanced the price from that earlier represented and owing whereto the charter offered by the defendants was not accepted by the plaintiff/non-applicant and upon the failure of the defendants to refund the advance received, the suit has been filed.

12. The “Acceptance Contract” dated 8th July, 2016, besides in clauses A to C thereof providing for charter cost and payment terms etc., in Clause D thereof provides as under:-

“D. CANCELLATION Rules:-

1. Mentioned on www.privatecharter.in”

13. This application under Section 8 of the Arbitration Act has been filed relying upon the arbitration clause on the website www.privatecharter.in.

14. The counsel for the plaintiff opposes the application by contending that the contents titled “Terms and Conditions”, of the said website, filed at pa