1. In this petition filed under Article 227 of the Constitution of India, the petitioners, the original defendants No.1 and 2 of Special Civil Suit No.759 of 2011 pending before the Third Additional Senior Civil Judge, Vadodara, have called in question the order dated 7.4.2012 rejecting the application below Exh.22 filed by the petitioners under section 8 of the Arbitration and Conciliation Act 1996 (hereinafter referred to as “the Act”).

2. As could be found from the plaint at Annexure-D, respondent No.1-original plaintiff has prayed to pass decree for specific performance of development agreement dated 16.8.2003 and for execution of the sale deed with possession in its favour. Respondent No. 1 has further prayed to declare that the sale-deed registered before the Sub Registrar, Vaghodiya having registration No. 2550 dated 22.11.2010executed in favour of defendant no.2 – petitionerNo.2 herein by defendant No.1-petitioner no.1 herein in collusion with defendants No.3 to 7 – respondentsno.2 to 6 herein be declared as illegal, null and void and further to declare that the defendants have got no right, title or authority to transfer, alienate or create any charge over the suit property or to enter into any transaction, make any writing or agreement or to make any change in the local situation of the suit property. The petitioners have also prayed for permanent injunction of the above said nature.

3. In the said suit, the petitioners filed written statement at Exh.21 and also an application Exh.22 under sec. 8 of the Act on the same day i.e. 16.1.2012. Learned Judge rejected application Exh. 22 by impugned order dated 7.4.2012 on the ground that the application was not maintainable as the same was filed after the written statement at Exh. 21 was filed and also on the ground that the prayer in the application is to reject the suit under section 8 of the Act but the suit could not be rejected under sec. 8 of the Act.

4. Initially, learned Senior Advocate Mr. N.D. Nanavaty appeared with learned advocate Mr. Tirthraj Pandya for the petitioners and made his submissions. Learned Senior Advocate Mr. Nanavaty submitted that the learned Judge has committed serious error in reaching to the conclusion that the petitioners filed application under sec. 8 of the Act after the first statement was presented by the petitioners. Learned Senior Advocate Mr. Nanavaty submitted that the petitioners filed application at Exh.22 under sec. 8 of the Act and the first statement at Exh.21 on the same day, but the concerned officer of the Court had given exhibit number on written statement prior in point of time than the application filed under sec. 8 of the Act and therefore the application under sec. 8 considered as having been filed after filing of the first statement by the petitioners. Learned Senior Advocate Mr. Nanavaty submitted that when the written statement as well as the application under sec. 8 of the Act both were filed on the same day, learned Judge ought not to have taken too technical a view while dealing with the application Exh. 22 especially when the petitioners have categorically and in unequivocal terms raised issue about arbitration in their written statement on the basis of the Arbitration Clause in the development agreement and made very clear not to submit to the jurisdiction of the court.

5. Since learned Senior Advocate Mr. Nanavaty could not come to make further submissions, Learned Advocate Mr. Unmesh Shukla appeared with learned advocate Mr. Pandya for the petitioners to make further submissions on behalf of the petitioners.

6. When the Court put to learned advocate Mr. Shukla that even if the ground for rejection of the application under sec. 8 of the Act as regards filing the said application after the first statement could not sustain, whether, in view of the fact that the matter brought before the civil court since not the subject matter of the Arbitration agreement, the parties to the suit could be referred to the arb