JUDGMENT

Dr. A.K.RATH, J. - The instant petition under Article 227 of the Constitution of India is to laciniate the order dated 4.11.2008 passed by the learned Civil Judge (Jr. Division), Bhubaneswar in C.S.No.262 of 2006. By the said order, the learned trial Court allowed the application of the defendant under Section 5 and 8 of the Arbitration and Conciliation Act, 1996 and referred the dispute to the Director, Marketing of the Indian Oil Corporation to decide the dispute either himself or through any other officer to be nominated by him, if he so desires.

2. Pursuant to the agreement dated 4.1.2002, the Indian Oil Corporation Ltd.-opposite party appointed the petitioner as its dealer for retail sale of Petrol/HSD/motor Oil/grease and other petroleum products. On 19.6.2006, the Area Field Officer of the opposite party inspected the retail outlet of the petitioner and found certain irregularities. Samples of MS (Petrol/H.S.D.) were taken from the outlet. The same was sent to the laboratory for testing. After receipt of the report, the opposite party issued a show cause notice to the petitioner on 28.6.2006 for taking penal action as per MDG-2005. Thereafter the petitioner filed Civil Suit No.262 of 2006 in the Court of the learned Civil Judge (Jr. Division), Bhubaneswar impleading the opposite party as defendant praying, inter alia, to declare the letter dated 28.6.2006 issued by the opposite party as illegal and restrain the opposite party from taking any penal action. After issuance of summons, the defendant entered appearance and filed an application under Section 5 read with Section 8 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) to refer the dispute to an arbitrator in terms of clause 69 of the agreement. By order dated 4.11.2008, the learned trial Court allowed the application of the opposite party.

3. Assailing the order dated 4.11.2008, Mr.S.P.Mishra, learned Senior Advocate for the petitioner submitted that the learned trial Court committed a manifest illegality and impropriety in referring the matter to the arbitration in terms of clause 69 of the agreement. He further submitted that in view of clause 68 of the agreement, the learned trial Court alone shall have jurisdiction to entertain any suit, application or other proceeding in respect of any claim or dispute arising under the agreement. The cause of action has accrued within the territorial jurisdiction of Bhubaneswar and as such the learned trial Court is competent to try the suit. Thus, the suit is maintainable. According to Mr.Mishra, learned Senior Advocate, when there are two clauses in the agreement, then the Civil Court will continue its jurisdiction. The plaintiff is the Dominus Litis. In view of existence of two clauses, the plaintiff has approached the Civil Court at Bhubaneswar. He relied on the decisions of the apex Court in the case of P. Anand Gajapathi Raju and others v. P.V.G.Raju (died) and others, AIR 2000 SC 1886, Sukanya Holdings Pvt. Ltd. v. Jayesh H. Pandya and another, AIR 2003 SC 2252, Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, AIR 2003 SC 2881, Chandra Singh v. State of Rajasthan and another, AIR 2002 SC 2889 and Bidulata Maharana v. Bank of India and Others, AIR 2009 Orissa 108.

4. Per contra, Mr.Mohanty, learned Advocate for the opposite party submitted that clause 69 of the agreement contains the arbitration clause. Immediately after appearance of the defendant, a petition under Section 8 of the Act was filed to refer the dispute to the arbitrator in terms of clause 69. So far as clause 68 is concerned, the same relates to all payments and the Civil Court at Calcutta alone shall have jurisdiction to entertain any suit, application or other proceeding in respect of any claim or dispute arising under the agreement, but not Bhubaneswar. Mr. Mohanty, learned Advocate further submitted that in the event any dispute arises out of the agreement containing arbitration clause and the require