RATHORE, J. - (1.) THE present writ petition has been filed against the order dated 29. 9. 2003 passed by the Civil Judge (JD), Tizara, Alwar on the ground that while allowing the application of the respondent No. 1 filed under Section 8 of the Arbitration and Conciliation Act, 1996, the Trial Court has committed serious irregularity as Section 8 is only applicable in case of domestic arbitration and or in the International Commercial Arbitration but not in the case of the Arbitration between the parties belonging to the Convention countries, therefore, the provisions of Section 8 has no application where the parties to the agreement belongs to the countries which are contracting States under the New York Convention.
(2.) LEARNED counsel for the petitioner submits that Section 45 begins with a non-obstante clause and expressly overrides the provisions of Section 8 contained in the first part of the said Act, as such, the Civil Judge ought to have dismissed the application of the respondent No. 1 filed under Section 8 of the Act. After referring provisions of Section 45, learned counsel for the petitioner submits that Civil Judge committed gross error in holding that Section 45 of the Arbitration & Conciliation Act, 1996 is in part II which has been enacted for enforcement of the foreign awards and in this case, no award has been passed so far, therefore, there is no question of enforcement thereof. Section 45 applied where there is an arbitration agreement between the parties belonging to the Contracting States who are signatories to the New York Convention and the National Court of the Contracting State is already seized of an action in the matter in respect of which the parties have made an agreement and one of the parties requests that the parties be referred to arbitration. It is also given out that Section 45 applies to a pre-award stage and not to the post award stage as has been wrongly held by the Civil Judge. Learned counsel for the petitioner also referred Section 46 to 52 of Part II which applies to the Post Award Stage whereas Section 45 is meant for Pre-Award Stage, therefore, the reason given by the Civil Judge with regard to Section 45 is erroneous and the impugned order is liable to be set aside on this ground alone. Learned counsel has given much emphasis with regard to application of Section 8 as the application which has been filed under Section 8 cannot be treated as application under Section 45. He also point out the significant difference in the two provisions that under Section 45, before referring the parties to arbitration, the judicial authority is required to record a finding that the arbitration agreement is not null and void inoperative, or incapable of being performed, while Section 8 does not required the Court to record any such finding. Under Section 3 of the Act of 1961, the Court could refuse stay of proceedings if it was satisfied that the agreement was null and void, inoperative or incapable of being performed or that in fact there was no dispute between the parties with regard to the matter agreed to be referred. Section 8 though based on Article of the Model Law, does not adopt the words `unless it find that the agreement is null and void, inoperative or incapable of being performed', used in it. It is also submitted that omission is deliberate because in view of the competence of arbitral tribunal to rule on its jurisdiction under Section 16 in Part I, the legislature did not intend to encroach on that jurisdiction.
(3.) LEARNED counsel for the petitioner in support of his submissions referred the judgment rendered by Hon'ble Supreme Court in case of Renu Sagar Power Co. Ltd. vs. General Electric Company & Anr. (1) and 2002 (1) SCC 633 After placing reliance on the aforesaid judgment, learned counsel for the petitioner submits that the respondents are denuded from raising this point for the first time before this court as that shall tantamount to circumventing and stifling the safeguard provided to a party like petitioner under Section 45 of the Act. Over- riding provisions of Section 45 appearing in Part II shall render the application of Part I inapposite and impermissible in law. To strengthen his submissions, he placed reliance on the judgment reported in 1984 Suppl. SCC 196 (3), 1986 (4) SCC 447 It is further submitted that application Order 7 Rule 11 for dismissal of the suit is still pending and since no application under Section 45 has been moved before the trial Court till the date of conclusion of hearing in this matter and no written statement has been filed by the respondents, therefore, the averments contained in the writ petition remained uncontroverted. As already submitted hereinabove, the petitioner again given much emphasis that the Trial Court shall have to consider the validity of agreement before referring the matter to the arbitral tribunal, and therefore Section 45 applies to pre-award stage as opposed to post-award stage as held by the Trial Court. The Trial Court has erred in mentioning Section 45 without complying detailed requirements as enjoined by Section 45 of the Act. There are certain conditions precedent which have to be fulfilled before invoking Section 45 of the Act and those conditions have not been fulfilled in this case. Thus, mere observations of Trial Court regarding Section 45 shall not mean that requirements of Section 45 have been completed. ;