- (1.) HEARD learned counsel for the petitioner and learned counsel for the re spondent.
(2.) BY means of this writ petition, the petitioner has challenged the order dated 16-12-2003, passed in Suit No. 94 of 2001, by I Additional District Judge, Haridwar, whereby the said court has held the dispute in question is ref erable to Arbitrator, and further directed the parties to submit names of Arbitra tors, within fifteen days. Brief facts of the case are that respondent is dealer in 380 KVA diesel generator sets. It appears that the plaintiff (present petitioner) placed an order on 24-06-2000 for supply of said generator to the defendant (present re spondent ). It appears that an advance of rupees one lac was made through D. D. No. 920638 on the same date. The order appears to have been ac cepted by M/s Himalayan Stone Crasher Pvt. Ltd. (plaintiff / peti tioner) vide its letter dated 24-06-2000 on the terms and conditions men tioned with said letter. The plaintiff's case is that the supply was not made in terms of the agreement and hence, the suit was filed for repayment of ad vance money paid to the defendant and also for recovery of damages. M/ s Jakson Limited (defendant) appears to have raised objection before the trial court that the dispute is covered under arbitration agreement between the parties and the suit is not main tainable. After hearing the parties, the trial court passed the impugned order holding that the dispute is covered by the arbitration agreement between the parties and directed the parties to sub mit the names of the Arbitrators. Hence, this writ petition. Learned counsel for the peti tioner argued that there is no written agreement signed by the parties, which contains a clause that a dispute be tween the parties in respect of the deal in question, would be referred to the Arbitrator. In reply to this learned counsel for the respondent drew atten tion of this Court to the terms and conditions, mentioned with the letter dated 24-06-2000, exchanged with the plaintiff (petitioner ). Clause (d) of the 'other TERMS' mentioned in the enclosure Annexure "c" +o letter dated 24-06-2000, reads as under : " (d) Any dispute arising out of or der I contract against this offer shall be referred to arbitrator un der Arbitration and Conciliation Act, 1996 read with modifications thereof in force and such Arbitra tion shall be held conducted and concluded at Delhi. " No doubt, aforesaid terms and conditions are not signed by the par ties, but sub-section (4) of Section 7 of the Arbitration and Conciliation Act, 1996, which defines the expres sion 'arbitration agreement', reads as under: "7 (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 tel ecommunication which provide a record of the agreement; or (c) an exchange of statement of claim and defence in which the existence of the agreement is al leged by one party and not denied by the other," In view of aforesaid provision it is not necessary that every agreement must be signed by the parties. The exchange of letters between the parties, copies of which are annexed with the writ petition, clearly show that there was an arbitration clause be tween the parties. That being so, in view of the provisions of Section 5 of the aforesaid Act, the trial court rightly held that it has no jurisdiction and the dispute is referable to the Arbitrator.
(3.) HOWEVER, the trial court has erred in law by inviting list of names of Arbitrators, as Civil Court had no jurisdiction to nominate the Arbitrator (Section 11 of the Arbitration and Conciliation Act, 1996 ). For the reasons as discussed above, this Court does not find any error of law committed by the trial court in holding that the suit was hit by Section 5 of the Arbitration and Conciliation Act, 1996. However, the direction to the parties to submit list of Arbitrators containing three names was beyond the jurisdiction of the trial court and, as such, the same part is liable to be quashed.;