JUDGMENT M. R. Verma, J.: - Since both these applications under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) arise on the basis of the same agreement, therefore are being disposed of by this common order.

2. Brief facts leading to the presentation of these applications are that the plaintiff has instituted the suit against the defendants for dissolution of partnership firm (defendant No. 1), for rendition of accounts etc. The suit is at the initial stage. Before filing the written statement, defendant No. 2 filed OMP No. 179 of 2004 averring therein that the deed of partnership between the parties contain an arbitration clause that any dispute that may arise amongst the partners pertaining to the affairs of the partnership shall be referred to the arbitration of an arbitrator whose decision shall be final and binding on the partners, therefore, in view of this arbitration clause, the dispute is required to be referred to the arbitrator.

3. On the basis of similar averments, OMP No. 195/2004 has been filed by defendants No. 3 and 4.

4. The applications have been resisted by the plaintiff on the grounds that Clause 12 of the partnership deed relied by the defendants for referring the dispute to an arbitrator is a matter of record and is not denied but it is disputed that this clause is not such which leaves no room for instituting the suit in the Court. On the contrary, the clause by its nature is not binding on the partners as it specifically provides that jurisdiction of the civil Court shall not be ousted.

5. I have heard the learned Counsel for the parties and have also perused the relevant records.

6. Section 7 of the Act reads as under:- "7. Arbitration agreement (1) In this part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in - (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not defined by the other. (5) The reference in a contract to a document containing an arbitration clause constituted an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract."

7. In view of the above definition, it is clear that any clause in a deed or agreement providing for referring the disputes between the parties to the deed/agreement to arbitration will constitute an arbitration agreement. However, since arbitration clause in a contract ousts the jurisdiction of the Court, therefore, it has to be strictly construed and while so construing it has to be kept in view that to constitute an arbitration agreement, the parties should be ad idem in other words the agreement of the party should be established so that they can be held to be bound by it absolutely and mandatorily leaving no option to them to get their disputes settled by any forum other than the arbitrator. The intention of the parties has to be gathered from the language used in the agreement and it should be essentially born by the language used that the parties had clearly and unambiguously agreed that the disputes should be determined in a quasi judicial manner, that is, by arbitrator. If the agreement provides or keeps open any remedy other than the settlement by arbitrator for redressal of the dispute, it cannot be said to be mandatory and biding arbitration clause. In such a case the party seeking redressal of dispute

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