- (1.) THIS First Appeal has been filed challenging the order dated 15-9-2006 passed by Additional District Judge, Agra, by which he has rejected the plaint under Order VII, Rule 11 C. P. C. and in view of the arbitration agreement between the parties it has referred the matter to the arbitrator. The facts in brief are that the plaintiff/respondent filed Original Suit No. 596 of 2006 for mandatory injunction to furnish details of true and correct amount incurred in raising construction and for refund of excessive money received by the defendant. The defendant on 21-9-2005 moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 (In brief the Act) before the Court below to the effect that there is an agreement between the parties, which also provides for arbitration between the parties, therefore, the suit is not maintainable and the matter be referred to the arbitrator. The plaintiff filed his objection to the application on 6-2-2006 wherein this fact was not disputed that there was an arbitration agreement between the parties. However, since the application under Section 8 of the Arbitration and Conciliation Act filed by the defendant remained pending, the defendant also filed his written statement on 22-11- 2005. The defendant filed another application before the Court below on 8-5-2006 that the suit be dismissed and the matter be referred to arbitration in view of the earlier application moved by the defendant on 21-9-2005.
(2.) WE have heard Sri Manish Kumar Nigam, learned Counsel for plaintiff/appellant and Sri P. C. Jain, learned Counsel appearing for defendant/respondent. Learned Counsel for the appellant has vehemently urged that since the defendant had filed his written statement which demonstrates that he had acceded to the jurisdiction of the Court, therefore, the plaint could not be rejected under Order VII, Rule 11 C. P. C. and the parties could not be relegated to arbitration. He has placed reliance on the decision of the Apex Court in P. Anand Gajapathl Raju and Ors. v. P. V. G. Raju and Ors. , 2000 (2) JCLR 201 (SC) : (2000) 4 SCC 539. On the other hand, Sri P. C. Jain, learned Counsel appearing for defendant/respondent has urged that the application for referring the matter to arbitration under Section 8 was filed by the defendant before filing the written statement, therefore, the application was liable to be allowed. The second application under Section 8 was only a reminder of the first application. He has placed reliance on the decision of the Apex Court in Rashtriya Ispat Nigam Ltd. and Anr. v. M/s. Verma Transport Company, 2006 AIR SCW 3966.
(3.) THE short question that arises for consideration in this appeal is whether the application filed by the defendant/respondent under Section 8 of the Act would be maintainable even though subsequently the defendant/respondent had filed, his written statement? For appreciating the controversy involved in the case, it is necessary to extract Section 8 of the Act, which is quoted as under: "8. Power to refer parties to arbitration where there is an arbitration agreement.- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. ";