This is an application under section 115 read with section 151 of the Code of Civil Procedure challenging the order dated 16.02.2004 passed by the learned Civil Judge (Senior Division), Dibrugarh dismissing the application filed under section 8 of the Arbitration and Conciliation Act, 1996.

2. The opposite party herein, as plaintiff, instituted Title Suit No. 2/2004 in the Court of learned Civil Judge (Sr. Divn.) at Dibrugarh on 19.01.2004 stating that he is a tea planter and a partner of M/s. Hatigarh Tea Estate. Pursuant to a decision arrived at by the Board of Directors and defendants on 08.11.2002 at Kolkata, the suit factory was leased out to the plaintiff on 10.01.2003 by entering into a deed of agreement as well as of Memorandum of Understanding. It was agreed to by the parties that the suit factory would be leased out to the plaintiff for a term of 5 years w.e.f. 10.01.2003. Plaintiff claimed to have obtained possession over the suit factory on 10.01.2003 pursuant to an agreement and made renovation and repairs by investing money by incurring expenditure to the tune of Rs. 12,00,000/-. The plaintiff also purchased and installed necessary machineries in the factory to raise the capacity of the factory. In the process, the plaintiff spent more than Rs. 3,00,000/- for necessary improvement of the factory. He made further expenditure of Rs. 9,00,000/- in making payment of liability to the Assam State Electricity Board and also for repairing and installing of machineries apart from making payment of another sum of Rs. 5,00,000/- as advance in the form of security to take the factory on lease. Sometimes in October, 2003 the defendant No. 2 asked the plaintiff over phone from Kolkata for payment of some more money when the plaintiff requested him to come down to Dibrugarh to settle the accounts for the year 2003 and he agreed to come within a short time. He came to Dibrugarh and met the plaintiff just before Bihu and there was a discussion between them on 13.01.2004. He assured the plaintiff that on 16.01.2004 he would be coming to Dibrugarh again to settle the accounts. In the mean time on 15.01.2004 one Aloke Chowkhani, the defendant No. 2 and one of the Directors of the defendant trespassed into the factory and broke all the 12 locks fitted on the gate. The defendant No. 2 put some guards in addition to the guards of the plaintiff in the factory and restrained the factory manager to come in. Under such circumstances, the plaintiff instituted the suit praying for a decree of declaration and for confirmation of his possession over the suit factory for enforcement of contract entered into by way of Memorandum of Understanding on 10.01.2003, compensation of Rs. 26,00,000/- along with prayer for permanent and mandatory injunction. The plaintiff also filed an application under Order XXXIX Rule 1 and 2 read with section 151 of the Code of Civil Procedure praying for temporary injunction which, however, was rejected by the learned trial court. In the mean time, defendant appeared and filed an

“(h). That incase of any dispute or differences regarding any matters relating to this agreement, the same shall be settled amicably and if remains un-settled shall be referred to a common friend and well-wisher of the parties instead of rushing to the court.”

3. This MoU dated 10.01.2003 was followed by another agreement dated 05.02.2003 wherein the same clause exists as Clause 30. According to the defendant, this is an arbitration clause and he made a demand that the matter be referred to arbitration.

4. The plaintiff did not file any objection against the same. However, the learned trial court after hearing the parties, passed the impugned order on 16.02.2004 rejecting the prayer for referring the matter to arbitration and holding that there was no arbitration clause in the agreement and that Clause 30 of the agreement dated 05.02.2003 as well as Clause (h) of MoU dated 10.01.2003 do not constitute an arbitration agreement within