Heard the learned advocates for the parties.
2. In this petition filed under Article 227 of the Constitution of India, the challenge is to the order dated 07.03.2012 passed by the learned Auxiliary Judge, Court No.14, City Civil and Sessions Court below Exh.39 in Regular Civil Suit No.1890 of 2011 whereby the Chamber Summons taken out by the petitioner-original defendant No.3 under Section 8 of the Arbitration and Conciliation Act, 1996 [for short, `the Arbitration Act'] came to be dismissed.
3. Brief facts of the case, leading to filing of the present petition, are stated as under:
3.1 The original plaintiff has filed the suit against the defendant with a prayer to declare General Power of Attorney executed in favour of defendant No.1 as null and void and further prayed that defendant be restrained from dealing with the suit property, more particularly, mentioned and descried in para 4 of the suit from executing any deed of agreement to create an encumbrance on the suit property on the basis of the said Power of Attorney executed on 15.06.2007. Simultaneously, the plaintiff has also taken out notice of motion which is pending for final hearing and disposal.
4. After considering the rival contentions of the parties, learned Judge in para 8 held as under:
"8. Heard the learned advocates for the parties, perused the documents produced by the parties and also gone through the ratio laid down in the aforesaid decided case by the Hon'ble Apex Court and while considering the facts of the present case, it appears that defendant No.3 has not produced the original Arbitration Agreement of duly certified copy thereof as per sub-section [2] of section 8 which is mandatory provision. It also appears that the plaintiff has denied the execution of the so called Arbitration Agreement with defendant No.3. Moreover, the signature bears on the so called Arbitration Agreement has also been disputed by the plaintiff, and therefore, the plaintiff has asked defendant No.3 to produce the original documents. Inspite of it, defendant No.3 has not turned up to produce the same. Thus, considering the relief sought for by the plaintiff in the suit, it appears that the plaintiff has sought a declaratory relief as well as prohibitory relief against defendant No.1 regarding the suit property. It also reveals that defendant No.3 has never made any attempt to take necessary steps as per sub-sections [1] and [2] of section 8, and therefore, the jurisdiction of civil court should not be ousted. Thus, in view of the provisions of section 8 and the dispute raised by the plaintiff as to the execution of the Arbitration Agreement and also considering the relief sought for by the plaintiff, the chamber summons taken out by defendant No.3 only on the basis of the Development Agreement and the insertion of the arbitration clause, which has been disputed by the plaintiff, and therefore, under the aforesaid circumstances, I do not think it proper to refer the dispute to the arbitrator under the foregoing circumstances and accordingly, the chamber summons taken out by defendant No.3 deserves to be dismissed. Hence, I pass the following order:-
ORDER The chamber summons taken out by defendant No.2 is dismissed.
Dictated and pronounced in the open Court on this 7th day of March, 2012."
5. Learned advocate for the petitioner submits that the court below has committed an error apparent on the face of record inasmuch as in the impugned order it was observed that the defendant No.3 had not produced the original arbitration agreement or duly certified copy as per sub-sections [1] and [2] of section 8 of the Arbitration Act. It is further submitted that in fact the petitioner has produced the original arbitration agreement. It is, therefore, submitted that on this count alone the impugned order is required to be quashed and set aside.
6. Mr. Premal Nanavaty, learned advocate appearing for the respondent - original plaintiff is unable to dispute the above fact of producing original development agreement before the trial court.
7. Heard learned advocates for the parties. The petitioner was permitted to produce certified copy of the documents and produced before the Court No.14, City Civil Court, pertaining to the subject matter of the Exhs. 39 and 40 in Civil Suit No.1890 of 2011. Upon perusal of the same, it reveals that the petitioner - original defendant No.3 produced original development agreement dated 19.07.2008 executed by the plaintiff in favour of the defendant No.3 - petitioner. Thus, admittedly, the findings of the court below that the defendant No.3 had not produced the original arbitration agreement or duly certified copy as per sub-sections [1] and [2] of section 8 of the Arbitration Act is contrary to the material on record and such error apparent on the face of the record deserves to be corrected in exercise of powers under Articles 226 and 227 of the Constitution of India.
In view of the above, order dated 07.03.2012 passed by the learned Auxiliary Judge, Court No.14, City Civil and Sessions Court below Exh.39 in Regular Civil Suit No.1890 of 2011 is hereby quashed and set aside. The matter is remanded to the court below to decide the application under section 8 of the Arbitration Act preferred by the petitioners - original defendant No.3 in accordance with law, as early as possible.
This petition is allowed to the aforesaid extent only.
[Anant S. Dave, J.] *pvv Top