- (1.) THE Judgment of the Court was as follows: the Court: The defendant in the suit has taken out this application arbitration and Conciliation Act, 1996 dated March 12, 2008 under section 8 of the seeking an order referring the parties to arbitration on the ground that the dispute involved in the suit is covered by an arbitration agreement whereby both the parties are bound.
(2.) THE plaintiff has filed opposition taking the ground that the application is not maintainable, since it was not accompanied by the original arbitration agreement or a duly certified copy thereof. It has taken a few more grounds questioning the maintainability of the application. It is also contending that the subject matter of the suit cannot be said to be a dispute covered by the arbitration clause referred to and relied on by the defendant.
(3.) IN support of his contention that an application under section 8 not accompanied by the original arbitration agreement or a duly certified copy thereof is quite maintainable, if the application is accompanied by a xerox of the agreement containing the arbitration clause, Mr. Sen, counsel for the defendant, has relied on ITC Classic Finance Ltd. v. Grapco Mining and Co. Ltd. and Ann, AIR 1997 Cal 397, and Bharat Sewa Sansthan v. U. P. Electronics corpn. Ltd. , (2007)7 SCC 737. His submission is that the requirement of filing the original arbitration agreement or a duly certified copy thereof should be treated as a technical requirement, and hence on the ground that the application is accompanied only by a xerox of the relevant arbitration clause it should not be thrown out, especially when the plaintiff has not specifically questioned the genuineness of the document or existence of the arbitration clause. He has said that even if it is held that the application not accompanied by the original arbitration agreement or a duly certified copy thereof is not maintainable, it should not be dismissed, since the defendant is in a position to produce the original arbitration agreement by filing a supplementary affidavit.;