IMPORTANT POINT
The language, terminology and phasing used may be different, but when the defendant sufficiently and abundantly makes it clear that the Court obtains no jurisdiction to consider the suit on account of the existence of a valid arbitration agreement and that they do not accede to its jurisdiction with respect to the disputes, the statutory obligation of the Trial Court, under Section 8(1) of the Arbitration Act, emanates and it then becomes imperatively enjoined to consider if the parties are to be referred to Arbitration, subject to all other legal criterion as are applicable

ORDER :

A pithy but decisive question, arising within the confines the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act' for short), has been impelled for decision in this Civil Revision Petition.

2. The question, is: Should the Civil Court, before which a suit is brought in a matter which is subject to an Arbitration agreement, refer the parties to it to Arbitration under the provisions of Section 8 of the Act, when the opposite side brings to its notice-through its first statement on the substance of the dispute-that there exists such a valid agreement, but without specifically seeking or applying for such reference.

3. The relevance of this question is in the fact that the reading of Section 8 renders it apparent that if a party to the Arbitration agreement or person claiming through him or under him so applies, the Court must refer the parties to Arbitration, unless it finds, prima facie, that no valid Arbitration agreement exists.

4. The aspect in controversy is therefore, whether the party seeking reference must make a specific request for the same, either through an application or in their first statement on the substance of the dispute, or whether it would be sufficient that they say in their first statement that there exists a valid Arbitration agreement and therefore, that the Court obtains no jurisdiction to try the suit.

5. This issue has arisen in this case because, the petitioners, who are the defendants in O.S.No.162/2015 filed by the respondent -M/s.Palathara Constructions, assails the order of the Sub Court, Ernakulam, which has refused to refer the parties to Arbitration solely on the ground that no such specific request had been made by them at the appropriate time. The petitioners vehemently submit that since they had, in their written statement -which is the first statement filed by them touching upon the substance of the dispute between the parties-that there exists an Arbitration agreement and therefore, that the suit is not maintainable, the Trial Court ought to have construed this as an application for reference under Section 8(1) of the Arbitration Act; and consequently ought to have referred the dispute to arbitration under its terms.

6. Before I move forward with respect to the assessment of the syllogistic contentions, I deem it appropriate that the relevant Section be looked into in detail, for which purpose, the same is extracted as under:

“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 to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme court or any court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.

(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:

[Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that court.]

(3) Notwithstanding that an application has been made under subsection( 1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

7. Sri.Jithin Saji Issac, learned counsel appearing for the petitioners