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2016 Supreme(P&H) 832
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DARSHAN SINGH, J.
Abhishek Industries Ltd. - Petitioner
Versus
Kamaldeep Singh Sandhu and another - Respondents
Civil Revision No.2341 of 2016
Decided on : 13-05-2016
Advocate Appeared:
For the Petitioner:Mr. Sanjeev Sharma, Senior Advocate with Mr. Shekhar Verma
For the Respondent: Mr. Satish Goel
The willingness and non-willingness of a party before the Arbitrator is not the ground to decline the application under Section 8 of the Act if there exists an arbitration clause in the agreement.
Headnote:
Arbitration - Application under Section 8 of the Arbitration and Conciliation Act, 1996 - The court set aside the order dismissing the application under Section 8 of the Act, emphasizing that the willingness and non-willingness of a party before the Arbitrator is not the ground to decline the application if there exists an arbitration clause in the agreement.
Fact of the Case:
The petitioner moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the matter to arbitration based on an arbitration clause in the agreement. The application was dismissed by the trial court on the ground that the respondent did not agree to appear before the Arbitrator.
Finding of the Court:
The court found that the trial court did not properly adjudicate upon the application under Section 8 of the Act and emphasized that the provisions of Section 8 are mandatory if there exists an arbitration clause in the agreement. The court set aside the impugned order and directed the trial court to pass a fresh order in accordance with law.
Issues: Proper adjudication of the application under Section 8 of the Act and the mandatory nature of the provisions of Section 8 if there exists an arbitration clause in the agreement.
Ratio Decidendi: The willingness and non-willingness of a party before the Arbitrator is not the ground to decline the application under Section 8 of the Act if there exists an arbitration clause in the agreement.
Final Decision: The impugned order dismissing the application under Section 8 of the Act was set aside, and the trial court was directed to pass a fresh order in accordance with law.
DARSHAN SINGH, J.
The present revision petition has been preferred against the order dated 15.02.2016 passed by learned Civil Judge (Junior Division), Barnala, whereby the application moved by the petitioner under Section 8 of the Arbitration and Conciliation Act, 1996 (for short the 'Act') has been dismissed.
2. Learned counsel for the petitioner contended that there was an arbitration clause in the agreement dated 25.07.2011. The petitioner-defendant had moved an application under Section 8 of the Act to refer the matter to the arbitration but the said application has been dismissed simply on the ground that the respondent did not agree to appear before the Arbitrator. Thus, he contended that the order passed by the learned trial Court is not in proper prospective and in fact the merits of the application have not been touched.
3. On the other hand Mr. Satish Goel, Advocate learned counsel for respondent No.1 contended that the learned trial Court has taken into consideration Clause 2.28 of the agreement dated 25.07.2011 and has thereafter passed the impugned order.
4. I have duly considered the aforesaid contentions.
5. From the perusal of the impugned order it comes out that the learned trial Court has not properly adjudicate upon the application moved by the petitioner under Section 8 of the Act. The learned trial Court has mentioned that the applicant is not agreed to appear before the Arbitrator. The willingness and non-willingness of a party before the Arbitrator is not the ground to decline the application under Section 8 of the Act. The provisions of Section 8 of the Act, if there exists the arbitration clause in the agreement, are mandatory. So, the impugned order is not sustainable in the eye of law. The same is hereby set aside. The learned trial Court is directed to pass the fresh order on the application moved by the petitioner under Section 8 of the Act in accordance with law.
