J.K. Ranka, J. - (1.) INSTANT revision petition has been filed by the revisionist challenging the order dated. 13/04/2010. It is submitted by learned counsel for the petitioner that the petitioner moved an application under Order 7 Rule 11 read with Section 151 CPC, however, the learned trial court did not decide the said application and merely stated that this case can be considered on arbitration and, therefore, the suit was returned by the learned trial court. Counsel submits that in any case, the trial court ought to have passed order when there was specific application under Order 7 Rule 11 CPC. Counsel submits that since there is no discussion on the same, therefore, the learned trial court be directed to decide the same.
(2.) I have considered the arguments advanced by counsel for the petitioner and notice that the trial court has referred to Clause 18 of the agreement under dispute which reads as under: - In case of any difference of opinion or dispute in respect of the inter preparation of any clause or any part of this agreement during and after the period of this agreement, the same shall be referred the Arbitrators under the provisions of law. The Hon'ble Apex Court has in catena of cases has come to a conclusion that if there is a clear recital about the arbitration clause, then in such cases, the matter has to be referred to the arbitrator. The Hon'ble Apex Court in the case of Branch Manager Magma Leasing and Finance Limited and another Vs. Portluri Madhavilata and another, reported in : (2009) 10 SCC 103, after dealing with observations and after referring to section of Arbitration and Conciliation Act, has held in Para 18 as under: - Section 8 is in the form of legislative command to the court and once the prerequisite conditions as aforestated are satisfied, the court must refer the party to arbitration. As a matter of fact, on fulfillment of the conditions of Section 8, no option is left to the Court and the Court has to refer the parties to arbitration. There is nothing on record that the prerequisite conditions of Section 8 are not fully satisfied in the present case. The trial court, in the circumstances, ought to have referred the parties to arbitration as per arbitration clause 22.
(3.) AGAIN , Hon'ble the Apex Court in the case of Olympus Superstructures Pvt. Ltd. Vs. Meena Vijay Khetan and others, reported in : AIR 1999 (SC) 2102 has also reiterated the same principle. Therefore, the trial court, keeping in view the mandatory provisions of Section 8 of the Arbitration and Condition Act and as held by the Hon'ble Apex Court in the two judgments, referred to hereinabove, shall decide such application in accordance with law and with these directions the matter is remanded back to the trial court to consider this aspect in accordance with law after hearing both the parties. As the respondents are not represented before this Court, it is also directed that fresh summons of the suit shall be served on the respondents and the trial court to ensure their appearance before the trial court. With these observations/directions, the revision petition is hereby disposed of.;