Poonam Srivastava, J. - (1.) HEARD Sri M.K. Gupta, Advocate, counsel for the petitioner.
(2.) THE order dated 27.7.2004 passed by Additional District Judge, Aligarh in Misc. Civil Appeal No. 114 of 2003, confirming the order of Civil Judge (Junior Division) Koil, Aligarh dated 24.9.2003 in Original Suit No. 89 of 2003 is challenged in this writ petition. The dispute revolves around an alleged agreement between the petitioner and the contesting respondents U.P.S.R.T.C. through its Managing Director, regarding existence of an arbitration agreement. Facts of the present case is that petitioner has been running an S.T.D Booth at Roadways Bus Stand near Gandhi Park, Aligarh at the rent of Rs. 1,000/ - per month. The petitioner claimed to have paid the rent up till 22.2.2002 against the Receipt No. 000946, Book No. 385 dated 29.1.2002. The contesting respondents extended a threat to remove the petitioner from his S.T.D. booth by force. Hence, the petitioner instituted an Original Suit No. 89 of 2002 claiming a relief of permanent prohibitory injunction in favour of the plaintiff/petitioner and to restrain the contesting respondents from interfering in peaceful possession running and occupation of the S.T.D./P.C.O. Booth No. 3 within the campus of Bus Stand of U.P.S.R.T.C, situated near Gandhi Park, Aligarh. The petitioner also filed rent receipts in support of the plaint contention. An application 27 -C2 was filed by the defendant/respondents raising a preliminary objection regarding maintainability of the Suit. The defendants claimed that there was an arbitration agreement between the parties incorporated in paragraph 18 of the agreement, therefore, the Civil Suit was completely barred. The trial court allowed the preliminary objection vide judgment and order dated 24.9.2003 and permitted the parties to refer the dispute within a period of three months to an arbitrator. However, meanwhile exercising the powers under Section 9 of the Arbitration and Conciliation Act 1996 (hereinafter referred as the Act) directed the parties to maintain status quo. The petitioner challenged the said order by filing a Misc. Appeal No. 114 of 2003, which was also dismissed vide judgment and order dated 27.7.2004. Both the judgments are impugned in the present writ petition. The petitioner has challenged the judgments of the courts below stating that the alleged agreement, which is basis of the preliminary objection of the defendants, is a forged document. The trial court was liable to frame an issue in this regard and only after adjudicating on the question of authenticity of the agreement, should have passed the order referring the dispute to the arbitrator. Counsel for the petitioner submitted that on the face of specific denial of the execution and existence of any agreement, the courts below were liable to record a finding after making thorough inquiry regarding genuineness of the document. The Appellate court has also failed to give any finding on the ground Nos. 2 and 3 raised in the memo of Appeal, which has also been annexed with the writ petition. Contention of the counsel for the petitioner is that original agreement or duly certified copy thereof as required by law was not brought before the court and it was never contended by the defendants that they were always ready and willing to work according to the terms of the so called agreement. In the circumstances, the order referring the dispute to an arbitrator is liable to be set at naught. The question, which has to be decided in the present petition is, that as to whether the courts below were correct in referring the matter to be decided by an arbitrator without examining the validity and the existence of an arbitration clause in the agreement, which the defendants claimed to have entered into between the parties and the plaintiff's clear denial.
(3.) THE Act of 1996 completely bars the jurisdiction of the civil court. Section 42 of the Act reads as follows: - Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and ail subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.;