Can the non-production of the arbitration agreement or copy affect the prayer under section 8 of the Arbitration and conciliation Act? Is section 8(2) mandatory in the sense that even innocuous non compliance must entail rejection of the claim under section 8? These are the questions that arise for consideration.

2. The petitioner is the plaintiff in a suit for recovery of money from the respondents - Southern Railway and its officials. The petitioner had entered into an agreement/contract with the respondents defendants. In that agreement there is an incorporation by reference of the General conditions of contract of the Indian Railways and Clause 64 of the said general conditions curtains a stipulation for arbitration. On receipt of the summons in the suit the respondents entered appearance and filled a written statement dated 09-02-98. In the written statement a plea regarding stipulation for arbitration was raised specifically. In the last para of the written statement the prayers were summorised in the following words:

"Hence it is prayed that the reliefs made in defendants and further it is also prayed that the reliefs sought for by the plaintiff and the counter-claim advanced by the defendants may be referred to an Arbitrator who is to be appointed in consonance with the General conditions of contract clause 64 of the civil Engineering works of the southern railway".

(Emphasis supplied)

Later a separate application was filed as I.A.1552/98 under section 8 of the Arbitration and conciliation Act, 1996 for making reference. The learned subordinate Judge by the impugned order produced as Ext.P1 held that section 8 applied and accordingly referred the parties to arbitration. Ext.P1 order is assailed before me in this writ petition.

3. It is contended first of all that the written statement had already been filed and in the light of the said written statement filed, the subsequent application filed under section 8 is not maintainable as section 8(1) mandates that application must be filed “not later than when submitting his first statement on the substance of the dispute". It is hence contended that I.A.1552/98 was belated and should not have been entertained.

4. I find no merit in this contention at all. The learned counsel for the respondent points out that I.A.1552/98 was not a fresh application under section 8. But it was only a reiteration of the request already made in the written statement to make a reference under section 8. I have extracted the relevant prayer in the written statement earlier and that according to me clearly shows that the I.A. must be reckoned only as the reiteration of the a request for reference already made in the written statement as contemplated under section 8(1) of the Act.

5. The learned counsel for the petitioner then contends that even assuming that no separate application under section 8 is necessary and the prayer (application) under section 8 can be incorporated in the written statement filed by the defendant, the request for reference under section 8 must fail for the reason that the said application was not accompanied by the original arbitration agreement or a duly certified copy thereof. There is no dispute that the original agreement or duly certified copy thereof was not produced along with the written statement. It was admittedly produced only along with I.A.1552/98.

6. Section 8 of the Arbitration and conciliation Act reads as follows:

"(1). A judicial authority before which an action in brought in a matter which is the subject of an arbitration agreement shall if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2). The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3). Notwithstanding that an application has been made under sub-section (1) and that the issue is pending be