# M/s Kapila Krishi Udyog Ltd v. M/s Kamdhenu Cattle Feeds Pvt. Ltd

- **Citation:** (2019) 1 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-10-09
- **Case number:** F.A.F.O. No. 1133 of 2017
- **Bench:** Sudhir Agarwal, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kapila-krishi-udyog-ltd-v-m-s-kamdhenu-cattle-feeds-pvt-ltd-44336
- **Pages:** 9

## Headnote

1 All. M/s Kapila Krishi Udyog Ltd. Vs. M/s Kamdhenu Cattle Feeds Pvt. Ltd.
631
Sri
Abhinava
Krishna,
Sri
Saurabh
Srivastava

A. First Appeal from order- appeal u/s
37(1)(a) of Arbitration and Conciliation
Act, 1996- application u/s 8 rejected on
non-filing of original or certified copy of
arbitration agreement copy - application
filed after filing written statements-
requirements
of
the
provision
not
complied with. When the arbitration
agreement is part of the plaint therefore
it was on record of the Court, application
u/s 8 cannot be rejected if the original or
certified copy is not provided separately.
The court below should have referred the
matter for arbitration as the appellant
did not submit to the dispute in their
written statement. (Para 22, 24 and 28)

B. Arbitration agreement- appellant is a
licensee of the trademark /artistic work
of the respondent for the purpose of
manufacturing
cattle
feed-
suit
for
injunction
for
infringing
registered
trademark of the respondent barred as
arbitration clause exists - appeal allowed

Chronological List of Cases Cited: -

1.Suit No. 331 of 2013 Eros International
Media Limited Vs. Telemax Links India Pvt.
Ltd. And others.

2.Civil Revision No. 775 of 2003 U.P. Industrial
Co-operative Association Ltd. Through its
General Manager Vs. Smt. Shobha Chandra
and Others.

3.AIR 2006 SC 2800 Rastriya Ispat Nigam Ltd.
And
Another Vs. M/s Verma Transport
Company

4.(2007) 7 SCC 737 Bharat Sewa Sansthan Vs.
U.P. Electronics Corporation Ltd.

5.(2008) 2 SCC 602 Atul Singh and others Vs.
Sunil Kumar Singh and others.

6.(2009) 10 SCC 103 Branch Manager, Magma
Leasing and Finance Limited and Another Vs.
Potluri Madhavilata and another.
7.(2017) 5 SCC 185 Ananthesh Bhakta
Represented by mother Usha A. Bhakta and
others Vs. Nayana S. Bhakta and others

8.2011 (2) ADJ 870 Alok Nath Chattopadhya
Vs. Anil Narayan Tadvalkar and others. (E-10)

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES
well as in the case of Magma General
Insurance Co. Ltd. v. Nanu Ram
reported in 2018 SCC Online SC 1546,
wherein the Apex Court has settled the
relevant issues related to grant/award of
compensation under the Motor Vehicles
Act, which includes the proper deduction,
multiplier and amount to be awarded
towards conventional heads.

32. The aforesaid observation has
been made keeping in view the findings
recorded by the Tribunal on the issue Nos.
7 and 8 and the operative portion of the
judgment and award dated 23.02.2015.

33. For the foregoing reasons, the
appeal is allowed. The matter is remanded
back to the Tribunal for afresh decision, as
per Law and observations made hereinabove,
on the issue Nos. 7 and 8. Fresh decision on
the issue Nos. 7 and 8 would substitute the
findings and conclusion of the award dated
23.02.2015. As far as other findings recorded
by the Tribunal are concerned, they remain
undisturbed. This has been provided keeping
in view the principle of speedy disposal of
the case.

34. The aforesaid view of this court
finds support from the observations made
by the Hon'ble Apex Court in para 28 of
the judgment in the case ofNational
Insurance Co. Ltd. v. Balakrishnan,
(2013) 1 SCC 731 : (2013) 1 SCC (Civ)
771 : (2013) 1 SCC (Cri) 677 : 2012
SCC OnLine SC 939, the same reads as
under:-

"28.
In
view
of
the
aforesaid analysis, we think it apposite to
set aside the finding of the High Court
and the Tribunal as regards the liability
of the insurer and remit the matter to the
Tribunal to scrutinise the policy in a
proper perspective and, if necessary, by
taking additional evidence and if the
conclusion is arrived at that the policy in
question is a "comprehensive/package
policy", the liability would be fastened on
the insurer. As far as other findings
recorded by the Tribunal and affirmed by
the High Court are concerned, they
remain undisturbed."

35. It is provided that for fresh decision
on issue Nos. 7 and 8, the learned Court
below/Tribunal would provide reasonable
opportunity of hearing to the respondents by
permitting them to file additional Written
Statement and additional evidence in rebuttal
to the additional evidence filed by the
appellants/claimants before this Court, if they
choose.

36. The parties would appear before
the Tribunal on 23/September/2019.

37. Office is directed to send the
lower court record to the Motor Vehicle
Accidents Tribunal/Additional District
Judge, Court No. 10, Lucknow.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2018

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHASHI KANT, J.

F.A.F.O. No. 1133 of 2017

M/s Kapila Krishi Udyog Ltd. ...Appellant
Versus
M/s Kamdhenu Cattle Feeds Pvt. Ltd.
 ...Respondent

Counsel for the Appellant:
Sri Kartikeya Saran

Counsel
for
the
Respondents:
1 All. M/s Kapila Krishi Udyog Ltd. Vs. M/s Kamdhenu Cattle Feeds Pvt. Ltd.
631
Sri
Abhinava
Krishna,
Sri
Saurabh
Srivastava

A. First Appeal from order- appeal u/s
37(1)(a) of Arbitration and Conciliation
Act, 1996- application u/s 8 rejected on
non-filing of original or certified copy of
arbitration agreement copy - application
filed after filing written statements-
requirements
of
the
provision
not
complied with. When the arbitration
agreement is part of the plaint therefore
it was on record of the Court, application
u/s 8 cannot be rejected if the original or
certified copy is not provided separately.
The court below should have referred the
matter for arbitration as the appellant
did not submit to the dispute in their
written statement. (Para 22, 24 and 28)

B. Arbitration agreement- appellant is a
licensee of the trademark /artistic work
of the respondent for the purpose of
manufacturing
cattle
feed-
suit
for
injunction
for
infringing
registered
trademark of the respondent barred as
arbitration clause exists - appeal allowed

Chronological List of Cases Cited: -

1.Suit No. 331 of 2013 Eros International
Media Limited Vs. Telemax Links India Pvt.
Ltd. And others.

2.Civil Revision No. 775 of 2003 U.P. Industrial
Co-operative Association Ltd. Through its
General Manager Vs. Smt. Shobha Chandra
and Others.

3.AIR 2006 SC 2800 Rastriya Ispat Nigam Ltd.
And
Another Vs. M/s Verma Transport
Company

4.(2007) 7 SCC 737 Bharat Sewa Sansthan Vs.
U.P. Electronics Corporation Ltd.

5.(2008) 2 SCC 602 Atul Singh and others Vs.
Sunil Kumar Singh and others.

6.(2009) 10 SCC 103 Branch Manager, Magma
Leasing and Finance Limited and Another Vs.
Potluri Madhavilata and another.
7.(2017) 5 SCC 185 Ananthesh Bhakta
Represented by mother Usha A. Bhakta and
others Vs. Nayana S. Bhakta and others

8.2011 (2) ADJ 870 Alok Nath Chattopadhya
Vs. Anil Narayan Tadvalkar and others. (E-10)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This appeal under Section
37(1)(a) of Arbitration and Conciliation
Act, 1996 (hereinafter referred to as "Act,
1996") has arisen from Judgment and
Order dated 07.03.2017, passed by
District Judge, Kanpur Nagar in Suit No.
02
of
2016,
whereby
defendantappellant's (hereinafter referred to as
"appellant")
application
filed
under
Section 8 of Act, 1996 has been rejected
on the ground that it was not accompanied
by original copy of agreement or duly
certified copy thereof, henc e, application
did not satisfy requirement of Section 8 of
Act, 1996.

2. Facts in brief giving rise to
present appeal, in brief, are stated as
under :

3. Appellant M/s Kamdhenu Cattle
Feeds Pvt. Ltd. is engaged in the business
of manufacture and sale of cattle feed
under the brand name "Kapila Pashu
Aahar". It is undisputed that Original Suit
No. 2 of 2016 was filed by plaintiffrespondent seeking injunction restraining
appellant M/s Kapila Krishi Udyog Ltd.,
its servants and other representatives etc.
from
infringing
registered
trade
mark/label
indicating
"Kapila
Pashu
Aahar"
in
any
manner,
including
deceptively using similar mark etc. In the
plaint it was specifically pleaded that
plaintiff entered into an agreement with
appellant on 17.05.2014, permitting to use
registered trade mark, artistic work and
632 INDIAN LAW REPORTS ALLAHABAD SERIES
goodwill in relation to cattle feed to be
manufactured with the formula specified
and expert know how supplied by
plaintiff. Under the said agreement
appellant, at best was a licensee of the
trade mark/artistic work etc. Copy of
agreement dated 17.05.2014 was enclosed
alongwith the plaint. Suit was instituted
vide plaint dated February, 2016.

4. After notice, appellant appeared
and filed written statement dated 1st
April, 2016. In paragraph 30 thereof,
besides other, appellant pleaded as under
:-

"30. ........ Without prejudice to
the above contentions, it is further
submitted that the disputes in the present
Suit are pertaining to the rights of the
parties arising out of the Brand Sharing
Agreement
dated
17.05.2015
which
specifically has an Arbitration Clause
for the resolution of such disputes......."
 (Emphasis added)

5. In paragraph 35 of written
statement,
besides
other,
appellant
pleaded as under :

"35. ........... Finally, it is also
submitted that as the basis of the present
suit is violation of the alleged Brand
Sharing Agreement, this suit is barred as
the
said
Agreement
contains
an
Arbitration Clause and the Defendant
reserves their right to take appropriate
legal recourse with respect to the same.
The
contents
of
the
preliminary
submissions and the foregoing paras is
reiterated and reaffirmed in this regard."
 (Emphasis added)

6. Thereafter, defendant-appellant
filed an application dated 29th July, 2016
under Section 8 of Act, 1996, requesting
District Judge to refer dispute between the
parties for adjudication by an independent
Arbitrator.

7. Plaintiff filed objection stating
that agreement dated 17.05.2014 has
already been terminated by notice dated
06.02.2016; defendant-appellant has filed
Suit No. 1 of 2016, seeking declaration
that agreement dated 17.05.2014 is void;
defendant himself is not honouring
agreement dated 17.05.2014; no steps
were taken by defendant-appellant to
appoint Arbitrator; the application should
have been filed before filing of written
statement and that defendant-appellant
has neither filed original arbitration
agreement nor any application before
filing
objection
to
the
injunction
application.

8. Application filed under Section 8
of Act, 1996 has been rejected by District
Judge on the following grounds : -

(i) it has been filed after filing
written statement,

(ii)
application
cannot
be
entertained unless it is accompanied by
original arbitration agreement or duly
certified copy thereof and there is no such
compliance by defendant-appellant.

9. Learned counsel for appellant
contended that agreement was already
part of plaint and objection with reference
to "arbitration clause" was also taken in
written statement. Therefore, rejection of
application on above stated technical
grounds is patently illegal. Reliance is
placed by Sri Anurag Khanna on Bombay
High Court's judgment in Suit No. 331 of
2013
-
Eros
International
Media
Limited Vs. Telemax Links India Pvt.
Ltd. and Others decided by a learned
1 All. M/s Kapila Krishi Udyog Ltd. Vs. M/s Kamdhenu Cattle Feeds Pvt. Ltd.
633
Single Judge (Hon'ble G.S. Patel, J.) vide
judgment dated 12th April 2016.

10. Per contra, learned counsel for
respondent contended that compliance of
Section 8 of Act, 1996 in letter and spirit
is mandatory and, therefore, learned
District
Judge
has
rightly
rejected
application filed by defendant-appellant
under Section 8 of Act, 1996 for non
compliance of requirement of Section 8 of
Act, 1996. He placed reliance on a
learned Single Judge judgment of this
Court in Civil Revision No. 775 of 2003 -
U.P.
Industrial
Co-operative
Association Ltd. through its General
Manager, 117/418, Sarvodaya Nagar,
Kanpur and Another Vs. Smt. Shobha
Chandra and Others (decided on 2nd
March, 2012).

11. Heard Sri Anurag Khanna,
learned Senior Advocate assisted by Sri
Kartikeya Saran, learned counsel for
appellant and Sri Ramendra Sinha,
learned Senior Advocate assisted by Sri
Saurabh Srivastava, learned counsel for
respondent.

12. In view of rival submissions, we
find that two points for determination
have arisen in this appeal which require
adjudication by this Court :

(I)
Whether
arbitration
agreement, if already filed by plaintiff
before Court below, would justify non
filing of original copy of agreement or
certified copy alongwith application filed
under Section 8 by defendant?

(II) Whether filing of written
statement before filing application under
Section 8 of Act, 1996 would exclude
application of Section 8?

13. In order to examine the
requirement, effect and consequence of
Section 8, it would be appropriate to have
Section 8 of Act, 1996, which reads as
under :-

"8. Power to refer parties to
arbitration where there is an arbitration
agreement.-(1) A judicial authority before
which an action is brought in a matter
which is the subject of an arbitration
agreement shall, if a party so applies not
later than when submitting his first
statement on the substance of the
dispute, refer the parties to arbitration.

(2) The application referred to
in sub-section (1) shall not be entertained
unless it is accompanied by the original
arbitration agreement or a duly certified
copy thereof.

(3) Notwithstanding that an
application has been made under subsection (1) and that the issue is pending
before
the
judicial
authority,
an
arbitration
may
be
commenced
or
continued and an arbitral award made."
 (Emphasis added)

14. Section 8 contemplates that if
there is an "arbitration agreement", in an
action brought by a party, the other party
by not later than submitting his first
statement on the substance of dispute,
may request Court to refer the matter to
arbitration. Sub-section (2) places an
embargo for such reference, stating that
application under sub-Section (1) shall
not
be
entertained
unless
it
is
accompanied
by
original
arbitration
agreement or a duly certified copy
thereof.

15. In the present case, existence of
"arbitration agreement" is not in dispute.
It also cannot be doubted that in written
634 INDIAN LAW REPORTS ALLAHABAD SERIES
statement filed by appellant he has
referred to said "arbitration clause". It is
also admitted fact that a copy of
agreement, which contains arbitration
clause, was filed by plaintiff-respondent
himself alongwith the plaint as its
enclosure. It is in this backdrop of facts
we have to examine and answer aforesaid
questions.

16. Section 8 has been considered by
Supreme Court in Rashtriya Ispat
Nigam Ltd. and Another Vs. M/s.
Verma Transport Company, AIR 2006
SC 2800. Appellant, a Public Sector
Undertaking, engaged in the business of
manufacturing and marketing of iron and
steel products, entered into contract with
respondent - M/s Verma Transport
Company, a partnership firm engaged in
the business of consignment agents.
Agreement was in regard to handling and
storage of iron and steel materials of
appellant at Ludhiana. Respondent Firm
received certain payments illegally and by
misrepresentation.
Matter
was
investigated
by
Central
Bureau
of
Investigation and a criminal case was
initiated against Anil Verma, one of
partners of respondent- Firm and certain
officials of appellant. Contract of respondent
was terminated by appellant on 23.05.2002.
Respondent Firm filed Suit No. 122 of 2002,
seeking permanent injunction restraining
appellant from black-listing respondent-Firm
and terminating consignment agency contract.
Civil Judge, Junior Division, granted interim
injunction directing parties to maintain statusquo qua termination of contract as well as
black listing. Appellant sought time to file
written statement. In reply to injunction
application, it took a plea that subject matter
of suit is covered by "arbitration agreement"
between the parties and suit is not
maintainable. On 7th June, 2002, application
under Section 8 of Act, 1996 was filed which
was rejected by Civil Judge by order dated
03.10.2002. Revision filed by appellant was
dismissed by High Court on the ground that
application filed under Section 8 did not
accompany "arbitration agreement", hence
application was not maintainable. Court in
paragraph 17 of judgment while considering
Section 8, said as under :

"17. Section 8 confers a power
on the judicial authority. He must refer
the dispute which is the subject-matter of
an arbitration agreement if an action is
pending before him, subject to the
fulfillment of the conditions precedent.
The said power, however, shall be
exercised if a party so applies not later
than when submitting his first statement
on the substance of the dispute."
(Emphasis added)

17. Court also said that the fact that
agreement was terminated is also a
dispute arising out of contract. It also said
that direction to make reference is not
only
mandatory
but
arbitration
proceedings
to
be
commenced
or
continued and conclusion thereof by an
arbitral award would remain unhampered
by pendency of any suit. It also held that
filing
of
reply
to
the
injunction
application cannot be a ground to reject
application. Appellant did not submit to
the jurisdiction of the Court. They did not
waive their right. They in effect and
substance questioned jurisdiction of Court
and raised a contention that suit was liable
to be dismissed. It also said that first
statement on the substance of the dispute
must be contra-distinguished with the
written statement. Court said:

"....it employs submission of the
party to the jurisdiction of the judicial
1 All. M/s Kapila Krishi Udyog Ltd. Vs. M/s Kamdhenu Cattle Feeds Pvt. Ltd.
635
authority. What is, therefore, is needed is
a finding on the part of the judicial
authority that the party has waived his
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 his right or
acquiesced himself 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 Act, 1996 may not held
wholly unmaintainable."

(Emphasis added)

18. Court also said that waiver of a right
on the part of defendant to the lis must be
gathered from the fact situation obtaining in
each case. A party, when receives notice from
the Court, is bound to respond to Court. While
doing so, they may raise a specific plea of bar
of the suit in view of existence of an
arbitration agreement. Court ultimately held
that Section 8 was attracted and application
was erroneously rejected.

19. In Bharat Sewa Sansthan Vs.
U.P. Electronics Corporation Ltd.,
(2007) 7 SCC 737, photocopy of
agreement was filed. Suit was filed by
appellant Bharat Sewa Sansthan for
eviction and recovery of arrears of rent
against respondent. Application under
Section 8 (1) of Act, 1996 was filed by
respondent
which
was
rejected
by
Additional District Judge, Lucknow, but
writ petition preferred by respondent
before High Court Lucknow Bench was
allowed and Court held that application
under Section 8 was wrongly rejected.
High Court directed the matter to be
referred for arbitration. In Supreme Court,
an argument was raised that original copy
of agreement or certified copy was not
filed, therefore, application under Section
8 was not maintainable. Court noticed that
respondent-Corporation specifically took
a plea that original agreement was in
possession of appellant while appellant
stated that original agreement was not in
its
possession.
In
this
background,
Supreme Court upheld the view taken by
High Court that photocopy of lease
agreement could be taken on record under
Section 8 for ascertaining existence of
arbitration clause.

20. In Atul Singh and others Vs.
Sunil Kumar Singh and Others, (2008)
2 SCC 602, suit was filed by Atul Singh
and others (hereinafter referred to as
'plaintiff') in the Court of Sub-Judge I,
Patna against Sunil Kumar Singh and
Others
(hereinafter
referred
to
as
'defendant'), seeking declaration that
partnership deed dated 17.02.1992 is
illegal and void. A declaration was also
sought that plaintiffs being heirs of
Rajendra Prasad Singh may be deemed to
continue as partners to the extent of their
share. Further a decree for rendition of
accounts of Firm from 01.04.1992 was
also prayed. Suit initially proceeded exparte against defendant. Subsequently expare order was recalled, whereafter
defendants filed an application under
Section 8 of Act, 1996, but an objection
was raised by plaintiff that Rajendra
Prasad Singh was not a party to the
partnership deed dated 17.02.1992 and
further agreement was not filed alongwith
application.
Court
held
that
since
Rajendra Prasad Singh or plaintiff were
not party to the deed dated 17.02.1992,
Section 8 has no application at all and in
such a case, matter could not have been
referred to arbitration. It also held that
there is non compliance of Section 8(2) of
636 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1996 which is mandatory. As the
copy of agreement was not filed,
therefore, also the application was rightly
rejected. Court observed :

"..therefore for application of
Section 8 it is absolutely essential that
there should be arbitration agreement
between the parties."
 (Emphasis
added)

21. In Branch Manager, Magma
Leasing and Finance Limited and
Another Vs. Potluri Madhavilata and
Another, (2009) 10 SCC 103, respondent
Smt. Potluri Madhavilata filed a suit
seeking recovery of possession of vehicle
and restraining appellant M/s Magma
Leasing and Finance Limited from
transferring said vehicle to any one. After
receiving notice, appellant made an
application under Section 8 of Act, 1996
before Trial Court praying for reference to
arbitrator and to stay the proceedings.
Application was contested by respondents
on
the
ground
that
hire-purchase
agreement
having
been
terminated,
arbitration agreement does not survive
and matter need not be referred for
arbitration. Application was rejected by
First Additional Senior Civil Judge,
Vijayawada. Thereafter, revision was
filed in Andhra Pradesh High Court,
which was also dismissed on the ground
that upon termination of hire-purchase
agreement, arbitration agreement does not
survive. Examining the question whether
arbitration clause also stood terminated
with termination of contract, Court said
that it will not. Findings recorded in paras
14 and 15 are reproduced as under :-

"14.
The
statement
of
law
expounded by Viscount Simon, L.C. in
Heyman as noticed above, in our view,
equally applied to the situation where the
contract is terminated by one party on
account of the breach committed by the other
particularly in a case where the clause is
framed in wide and general terms. Merely
because the contract has come to an end by
its termination due to breach, the arbitration
clause does not get perished nor is rendered
inoperative; rather it survives for resolution
of disputes arising "in respect of" or "with
regard to" or "under" the contract. This is in
line with the earlier decisions of this Court,
particularly as laid down in Kishorilal Gupta.

15. In the instant case, Clause
22 of the hire-purchase agreement that
provides for arbitration has been couched
in the widest possible terms as can well be
imagined. If embraces all the disputes,
differences, claims and questions between
the parties arising out of the said
agreement or in any way relating thereto.
The hire-purchase agreement having been
admittedly entered into between the
parties and the disputes and differences
have since arisen between them, we hold,
as it must be, that the arbitration Clause
22 survives for the purpose of their
resolution although the contract has
come to an end on account of its
termination."

(Emphasis
added)

22. Then coming to question with
regard to compliance of Section 8 of Act,
1996, Court held that Section 8 is in the
form of legislative command to the Court
and once prerequisite conditions are
satisfied, Court must refer the parties to
arbitration. As a matter of fact, on
fulfilment of conditions of Section 8, no
option is left to the Court and Court has to
refer the parties to arbitration.

23. Then we come to a very recent
decision, which is quite nearer to the facts
1 All. M/s Kapila Krishi Udyog Ltd. Vs. M/s Kamdhenu Cattle Feeds Pvt. Ltd.
637
of the case in hand. In Ananthesh Bhakta
Represented by Mother Usha A. Bhakta
and Others Vs. Nayana S. Bhakta and
Others, (2017) 5 SCC 185, a suit was filed
by Ananthesh Bhakta in the Court of District
Judge, Mangalore. An application under
Section 8(1) of Act, 1996 was filed by
respondent-defendants relying on arbitration
agreement in the retirement deed dated
25.07.2005 as well as partnership deed dated
05.04.2006.
District
Judge
allowed
application and referred the matter to
arbitration. Revision was filed by plaintiffappellant Ananthesh Bhakta in the Karnataka
High Court which was rejected vide
judgment dated 08.07.2014 and that is how
matter came to Supreme Court. One of the
issue raised before Supreme Court was that
application filed under Section 8 of Act,
1996 by respondent-defendant did not
accompany retirement deed and partnership
deed both, by referring whereto arbitration
was prayed. Two more objections were
raised - (i) all the parties to suit were not
party to the agreement and (ii) the Firm being
unregistered Firm no reference could be
made. With regard to question that
agreement was not appended to the
application filed under Section 8, Supreme
Court noticed in para 9 that both agreements
were filed by plaintiff-appellant himself
alongwith list of documents and therefore,
non filing thereof alongwith application filed
under
Section
8
by
defendant
was
inconsequential. Court also observed that
subsequently, before passing order by
District Judge, two deeds were filed by
defendants themselves and therefore also,
application ought not to be rejected on the
ground of non filing of agreement and thus
non compliance of Section 8(2) of Act, 1996.
Court distinguished judgment in Atul Singh
and Others (supra) by observing that
therein copies of agreement were not on
record and since agreement was not on
record at all, therefore, application under
Section 8, if not accompanied by agreement,
could have been rightly rejected for non
compliance of Section 8(2) of Act, 1996.
Court also referred to judgment of Bharat
Sewa Sansthan Vs. U.P. Electronics
Corporation Ltd. (supra), wherein a
deviation was admitted and photocopy of
lease agreement was taken to be sufficient
compliance of Section 8(2). Court then also
proceeded to decide issue by interpreting
Section 8(2) using phrase "shall not be
entertained". It held that Section 8(2) has to
be interpreted to mean that Court shall not
consider an application filed under Section
8(1) unless it is accompanied by original
arbitration agreement or duly certified copy
thereof. Filing of an application without such
original or certified copy but bringing
original arbitration agreement on record at
the time when Court is considering
application, shall not entail rejection of
application under Section 8(2). It further said
in para 29 that two documents were relied by
plaintiff himself, therefore, rejection of
application for want of agreement was not
justified. Para 29 of judgment reads as under
:

"29. In the present case it
is relevant to note that the retirement
deed and partnership deed have also
been relied upon by the plaintiffs. Hence,
the argument of the plaintiffs that the
defendants' application IA No. IV was
not accompanied by the original deeds,
hence, liable to be rejected, cannot be
accepted. We are thus of the view that the
appellants'
submission
that
the
application of the defendants under
Section 8 was liable to be rejected, cannot
be accepted." (Emphasis added)

24. In the present case also it is
admitted fact that agreement was placed
on record by plaintiff-respondent itself as
638 INDIAN LAW REPORTS ALLAHABAD SERIES
an enclosure to the plaint. It is also true
that appellant did not submit to the
dispute and instead refers to arbitration
clause in written statement and clearly
pleaded that suit is barred and matter is
liable for arbitration.

25. In a Single Judge judgment of this
Court in Alok Nath Chattopadhya Vs. Anil
Narayan Tadvalkar and others, 2011 (2)
ADJ 870, a specific plea was taken in written
statement that subject matter of suit is
covered by arbitration agreement entered
between the parties. Written statement was
filed
on
15.05.2006.
Thereafter
on
09.09.2006
application
was
filed
for
termination of proceedings and reference for
arbitration.
Trial
Court
allowed
the
application, where against review application
was filed, which was also rejected and then
matter came to this Court in writ petition. It
was argued that plea for arbitration ought to
have been raised before filing written
statement. Court referred to plea taken in
written statement that there existed an
arbitration clause and matter is liable to be
referred for arbitration and held that it cannot
be said that defendant has waived its right
and submitted to the substance of dispute and
jurisdiction of Court. Objection raised in
written statement in effect and substance
questioned
jurisdiction
of
Court
and
therefore, application if filed subsequently,
could not have been rejected on the ground
that it was not filed before filing written
statement.

26. In our view, learned Single
Judge has rightly held so, and this is
consistent with the discussion made by us
hereinabove.

27. We therefore, answer Question -
I holding that if agreement containing arbitration
clause is already on record, application under
Section 8(2) of Act, 1996 filed by defendant
cannot be rejected on the ground that it does not
accompany original copy or certified copy of the
agreement.

28. Question - II is also answered by
holding that when objection has been
taken in written statement itself referring
to arbitration clause in the agreement, it
will
mean that defendant has not
submitted to the jurisdiction of Court and
application
filed
subsequently
under
Section 8 cannot be said to be a non
compliance of Section 8(1) of Act, 1996.

29. In the result, judgment in
question passed by learned District Judge,
Kanpur Nagar, in Suit No. 02 of 2016,
cannot be sustained.

30. Appeal is allowed. Judgment
and order dated 07th March, 2017 is
hereby set aside. District Judge is directed
to refer the dispute to arbitration without
any further delay.
----------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2019

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

F.A.F.O. No. 160 of 1996

State of U.P. and Ors.
 ...Defendants/Appellants
Versus
M/s Harveer Singh Bulandshahar
 ...Plaintiffs-Respondent

Counsel for the Appellants:
Sri S.K. Mehrotra (S.C.)

Counsel for the Respondent:
Sri Anil Tiwari, Sri Sharda Prasad Mishra