An application for reference of a matter to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996 is not maintainable if the applicant does not file the original arbitration agreement or a certified copy thereof.

This is an application under Section 115 of the C.P.C. read with Art. 227 of the Constitution of India against the order dated 4-11-1998 passed by the learned Civil Judge (Senior Division) No. 1, West Tripura, Agartala in Money Suit No. 71 of 1998 thereby rejecting the prayer of the petitioner herein for stay of further proceedings of the suit in view of the Arbitration Clause in the Contract Agreement entered into between the parties.

2. The respondent as plaintiff brought a suit for recovery of Rs. 33,750/- from the petitioners herein. It was averred in the plaint that there was a contract agreement dated 2-11-1995 between the parties for construction of A type residential building at the permanent Colony of Agartala Gas Turbine Power Project, Ramchandranagar, Tripura West and on completion of the works the plaintiff submitted the final bill for an amount of Rs. 67,500/-. But out of the aforesaid amount a sum of Rs. 33,750/- was deducted by the defendants. According to the plaintiff the act of deduction of the said amount was improper and not sustainable in law. Hence, the suit.

3. In response to the summons for institution of the suit, the defendants filed an application which has been styled as one under Order VII, Rule 11, CPC for rejection of the plaint. It was averred in the petition that the agreement entered into between the parties for construction of the building under No. NEEPCO/CE(C)/Cont/AGTPP/18/95-96, dated 2-11-1995 contained in Arbitration Clause under Clause No. 66 of the Agreement. Thus, according to the contesting defendants as the matter was covered by the Arbitration Clause, the plaint was to be rejected under Order VII, Rule 11 of C.P.C.

4. The plaintiff also filed a written objection to the aforesaid application for stay of the suit/rejection of the plaint and after hearing the parties the learned trial Court passed the impugned order thereby rejecting the application of the defendants holding, inter alia, that the deduction of the amount of Rs. 33,750/- was made on ground which are not related to the agreement between the parties.

5. I have heard Mr. D.K. Biswas, the learned counsel appearing on behalf of the petitioners as well as Mr. S.M. Chakraborty, the learned counsel for the respondent.

6. At the very outset Mr.D.K. Biswas, the learned counsel for the petitioners has submitted that though the application filed by the defendants before the trial Court was styled as one under Order VII, Rule 11, CPC, the averments made in the petition clearly suggest that the aforesaid application may be taken as one under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) . The learned counsel has further submitted that as per the provision of Section 5 of the Act the present matter in which the parties have agreed that the matter should be decided upon by the Arbitrator as per the Arbitration Agreement, the trial Court should have referred the parties to the Arbitration for settlement of the dispute. Mr. S.M. Chakraborty, the learned counsel for the respondent, on the other hand, has submitted that there is no ground for interfering with the order passed by the learned trial Court.

7. As Mr. Biswas has submitted that in the matters covered by Arbitration Clause, the intervention of any judicial authority is barred under Section 5 of the Act, it will be pertinent to reproduce the aforesaid provision, which are given below :

"5. Extent of judicial intervention. - Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority shall intervene except where so provided in this Part."

8. Again Section 8 of the Act is also relevant and the same is also reproduced below :-

"8. Power to refer parties to arbitration where there is an arbitration agreement. - (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not