Anil Kumar Choudhary, J. - (1.) Heard the parties through Video Conferencing.
(2.) This writ application has been filed by the petitioner with a prayer for quashing the order dated 21.01.2013 passed by Civil Judge, Sr. Division-1, Jamshedpur in Money Suit No. 26 of 2011 whereby and where under, learned trial court has rejected the petition dated 10.04.2012 filed by the petitioner under section 8 of Arbitration and Conciliation Act. It is next submitted by learned counsel for the petitioner that respondent of this writ petition instituted said Money Suit no. 26 of 2011 for recovery of money. In the Money Suit no. 26 of 2011, the petitioner being the defendant of the suit appeared on 23.01.2012 and thereafter, took three adjournments for filing the written statement and thereafter, on 10.04.2012, the petitioner filed petition under section 8 of Arbitration and Conciliation Act, 1996 to refer the matter for arbitration. The respondent herein who was plaintiff in the suit, filed its objection to the said petition mainly on the ground that the reference of the matter to arbitration will result in delay. The learned trial court after hearing the parties, rejected the said petition, on the ground that as the defendant first sought time for filing the written statement and later on filed petition under section 8 of Arbitration and Conciliation Act, 1996, he has lost the opportunity, which was available to him under section 8 of Arbitration and Conciliation Act, 1996 and accordingly, he rejected the said petition of the petitioner dated 10.04.2012, on technicality without going to the merits of the petition.
(3.) Relying upon the paragraph 36 of the judgment of Hon'ble Supreme Court of India in the case of Rashtriya Ispat Nigam Ltd. v. Verma Transport Co., 2006 7 SCC 275, which reads as under : 36. The expression "first statement on the substance of the dispute" contained in Section 8(1) of the 1996 Act must be contradistinguished with the expression "written statement". It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable. We would deal with this question in some detail, a little later." (Emphasis Supplied) ;