1. By this application under section 115 of the Code of Civil Procedure, 1908, the applicant–original defendant has challenged the order dated 4.4.2011 passed by the learned Senior Civil Judge, Vadodara below exhibit-11 in Special Civil Suit No.626 of 2008 (Summary) and prays that the dispute raised in the said suit be referred for arbitration as per the terms of the arbitration clause stated in the application at exhibit 11.

2. The facts of the case stated briefly are that the respondent (original plaintiff) instituted a suit for recovery of Rs.42,00,000/- and interest of Rs.15,77,548/- at the rate of 20 per cent thereon in the Court of the learned Additional Senior Civil Judge, Vadodara under the provisions of Order XXXVII of the Code of Civil Procedure, 1908 (the Code) and prayed for a decree for Rs.57,77,548.00/-.

3. The case of the plaintiff was that under tender document for Heat Ventilation Air Conditioning (HVAC) Work, M/s Doshi Consultants Pvt. Ltd the duly appointed agents and consultants of the defendant, had floated tender inviting offers. The offer of the plaintiff came to be accepted and a binding contract was concluded, pursuant to which orders were placed by the defendant and the plaintiff duly supplied the goods. However, a sum of Rs.42,00,000/- was still outstanding and the defendant deliberately and negligently failed to pay the same despite reminders and subsequently after 15 months for the first time on 30th August, 2008 raised a complaint regarding cooling. Hence, the plaintiff instituted the above suit for recovery of the outstanding amount with interest.

4. Since the tender document based on which the plaintiff's claim was made in the suit contained an arbitration clause in the “Conditions of contract”, the applicant-defendant preferred an application under section 8 of the Arbitration and Conciliation Act, 1996 (the Act), at Exhibit-11. The defendant also made an application that no order as per the summons for judgment be passed and that the hearing of the same be kept in abeyance till the finalization of the application under section 8 of the Act. The plaintiff filed a reply to the said application objecting to the same. Subsequently, the plaintiff filed a purshish stating that without prejudice to its contentions, if the trial court comes to the conclusion that the application exhibit-11 should be allowed, then the plaintiff agrees to refer the dispute in the suit to arbitration on the condition that the defendant agrees to appoint any retired High Court Judge of the Gujarat High Court. By the impugned order, the learned Senior Civil Judge, Vadodara, rejected the application on the ground that the tender agreement in original or a certified copy thereof had not been produced along with the application and as such, the conditions precedent as required under section 8 of the Act were not satisfied. Being aggrieved, the applicant has filed the present civil revision application.

5. Ms. Megha Jani, learned advocate appearing on behalf of the applicant assailed the impugned order, submitting that the plaintiff's suit itself was based on the tender document which was produced by the plaintiff which contains the arbitration clause. The learned Judge was, therefore, not justified in rejecting the application under section 8 of the Act merely because the original or certified copy of the arbitration agreement had not been produced by the defendant along with the application under section 8 of the Act. It was submitted that in the present case, the suit of the plaintiff is based on the tender document containing the arbitration clause and a copy thereof had been produced by the plaintiff on the record of the suit. That there is no dispute as to the existence, validity or enforceability of the arbitration clause. Hence, it was not necessary for the defendant to produce the arbitration agreement in original or a certified copy thereof along with the application under section 8 of the Act more particula