P.K. Lohra, J.

By the instant appeal, under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, 'Act'), appellant has assailed order dated 23rd of August, 2018, passed Addl. District Judge No.2, Jodhpur Metropolitan, Jodhpur (for short 'learned Court below'). Learned Court below, by the order impugned, has rejected application of the appellant-defendant under Section 8(1) of the Act in a summary suit filed by respondent-plaintiff under Section 37 CPC for recovery of a sum of Rs.37,71,943.

2. Scorning the checkered history of the case, suffice it to state that respondent-plaintiff instituted a civil suit under Order 37 CPC against appellant before the learned Court below, inter-alia, on the ground that it is a proprietorship firm manufacturing quicklime and there were business transactions between plaintiff-firm and appellant-company since 2013. Further, elaborating the averments in this behalf, it is averred in the plaint that in the interregnum period from 25th of September 2013 to 12th of June 2014 petitioner company purchased quicklime worth Rs.58,37,204 including freight charges. The details of quicklime purchased by petitioner company from time to time is also mentioned in the plaint. The respondent-firm has also pleaded that out of the total amount aforementioned, appellant-company has paid Rs.16,21,558 through NEFT/RTGS/Cheque and the last payment of Rs.50,000 was vide Cheque No.001392 on 17th of August, 2016. With these positive assertions, it is asserted in the plaint that as on the day of filing of the suit, Rs.37,71,943 remained outstanding which the respondent-firm is entitled to recover. Details of 'C' forms furnished by the appellant-company and recitals about deduction of debit notes is also given in the plaint. For showing cause of action, respondent-firm has specifically averred that despite various phone calls and e-mails, when the appellant-company did not respond, the firm was left with no option but to institute a summary suit.

3. Upon receipt of summons, on behalf of appellant-company an application under Section 8(1) of the Act was moved before the learned Court below. As per averments in the application, appellant-company has specifically asserted that the purchase orders issued by it from time to time contained agreement with a clause of arbitration, as such, the dispute is arbitrable and can be settled by an Arbitral Tribunal. The recitals of arbitration clause were also produced in the application. It is also pleaded in the application that the subject matter of the suit is a dispute covered within the four corners of arbitration agreement and in fact arbitration proceedings have already commenced entailing stay in the suit proceedings.

4. Contesting the application of appellant-company, it was specifically pleaded by respondent-plaintiff in the preliminary objections that pertaining to the transactions neither there was any written agreement, nor the same was signed on behalf of respondent-firm, therefore, the terms of so-called agreement cannot be enforced vis-a-vis respondent-firm. Taking shelter of sub-section (2) of Section 8 of the Act, it is also averred in the reply that the application is not accompanied by original arbitration agreement or a duly certified copy thereof. Besides aforementioned preliminary objections, on merit also respondent contested the application by completely repudiating settlement of dispute through arbitration. That apart, respondent also pleaded in the reply that document dated 31st of May 2013 is not a purchase order but it is simply trial order and furthermore such trial order was never served on the respondent-firm containing the aforementioned conditions. Yet another objection was raised that trial order cannot be construed as an agreement between rival parties and therefore by virtue of Section 7 of the Act, petition under Section 8 is not tenable. Joining issue with the appellant on commencement of arbitral proceedings, it is pleaded by res