IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 322 of 2024 Decided on: 01.04.2025 ____________________________________________________ Pratap Singh ……….. petitioner Versus Bhagwan Singh ……….respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Vacation Judge Whether approved for reporting? 1 For the petitioner : Mr. Suneet Goel, Sr. Advocate, with Mr. Vishwas Kaushal, Advocate. For the respondent : Mr. J.L. Bhardwaj, Sr. Advocate, with Mr. Sarthak Upadhyay, Advocate. ____________________________________________________ Bipin Chander Negi, Vacation Judge (oral) The present petition has been filed against the order dated 09.05.2024, passed by the learned District Judge, Kullu, H.P. in Case No.7 of 2023, whereby order dated 19.07.2023 passed by learned Senior Civil Judge, Lahaul Spiti at Kullu in CMA No. 79-I of 2022 in Civil Suit No. 104 of 2022 restraining the petitioner from violating any terms and conditions of the partnership deed dated 29.11.2017 in any manner during the pendency of the suit has been affirmed. 2. Heard counsel for the parties. Pernbused the record. 3. The present petitioner was the defendant before the trial Court and the respondent was plaintiff before the trial Court. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 Both the petitioner and respondent are members of a partnership. The partnership in the case at hand is duly registered vide deed dated 29.11.2017. 4. The present respondent/plaintiff before the trial Court filed a suit for permanent prohibitory injunction restraining the present petitioner/defendant before the trial Court from using the stone crusher, misusing the funds of stone crusher being run in the name and style of M/s Pratap Stone Crusher, situated at Chhatru, Post office Khoksar, Tehsil Keylong, District Lahaul- Spiti, H.P. 5. Both the Courts have restrained the present petitioner/defendant before the trial Court by way of an interim injunction from running the business in violation of terms and conditions of partnership deed dated 29.11.2017. 6. Learned counsel appearing on behalf of the petitioner submits that insofar the registered partnership deed dated 29.11.2017 is concerned, there exists an arbitration clause in the same. An objection on account of jurisdiction of the Court was taken both in the written statement filed to the plaint as well as the reply filed to the application for grant of injunction. However, both the Courts have completely ignored the same. Learned counsel appearing on behalf of the petitioner has drawn the attention of this Court to Section 8 of the Arbitration and Conciliation Act. In the aforesaid facts and attending 3 circumstances, he has submitted that his plea with respect to the existence of an arbitration clause in the case at hand should have been considered by both the Courts below as the same had been raised in the first instance at the time of written statement as also reply to the application under Order 39 Rules 1 and 2 CPC. 7. Per contra, learned counsel appearing on behalf of the respondent submits that an objection under Section 8 should have been filed by moving an appropriate application, the same could not have been taken in the written statement or the reply filed to the application under Order 39 Rules 1 & 2 CPC. 8. Section 8 of the Arbitration and Conciliation Act, 1996 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 sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." 9. Section 8 does not specify the manner in which the party has to submit its first statement on the substance of the dispute, and normally with respect to a suit, the first statement on the substance of the dispute by the defendant would be the written statement. Thus, if 4 in the written statement filed it is brought to the notice of the Court that there exists an arbitration agreement between the parties which embraces the subject matter of the suit there would complete compliance with the mandate of the law and the Court would be obliged to refer the parties to arbitration if the plea in the written statement is made good. See (2014 SCC OnLine Del 4015 : (2014) 4 Arb LR 94 titled Sharad P. Jagtiani vs. M/s Edelwelss Securities Limited). 10. The requirement of making of an application seeking reference of the disputes between the parties to arbitration, as engrafted in Section 8(1) of the 1996 Act, is more a requirement of form than of substance. What matters is whether there is, in fact, an arbitration agreement between the parties, which is valid and subsisting. If such an agreement is in place, the jurisdiction of the Civil Court to hear and adjudicate subsists only so long as its attention is not invited to the arbitration agreement. Its jurisdiction perishes the very instant the arbitration agreement is brought to its notice, and a jurisdictional objection, on that ground, is raised - as has indisputably been done in the present case. The absence of any formal request for referring the dispute to arbitration makes no difference. An objection, predicated on Section 8(1) of the 1996 Act, in the light the existence of the arbitration agreement, ipso facto denudes the Court of its power to continue with the suit. It is rendered coram non judice. All future acts by the Court, in continuing to entertain the suit are, therefore, rendered ipso facto without jurisdiction. See (2023 SCC OnLine Del 7136 titled Madhu Sudan Sharma and others vs. Omaxe Limited). 5 11. For the aforesaid reasons, petition is allowed, in view of the arbitration clause in the case at hand, the order dated 09.05.2024, passed by the learned District Judge, Kullu, H.P. in Case No.7 of 2023, whereby order dated 19.07.2023 passed by learned Senior Civil Judge, Lahaul Spiti at Kullu in CMA No. 79-I of 2022 in Civil Suit No. 104 of 2022 restraining the petitioner from violating any terms and conditions of the partnership deed dated 29.11.2017 in any manner during the pendency of the suit has been affirmed despite a valid Section 8 objection having been raised by the petitioner, cannot sustain. 12. The petition is allowed in the aforesaid terms. Pending miscellaneous application, if any stand disposed of. (Bipin Chander Negi) Judge April 01, 2025 tarun