1 2025:CGHC:59297 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 172 of 2024 1 - Gshan Infrabuild Llp Resident Of Gshan Infrabuild Llp. Registered Office - 7and 8 Sahyadri Hilss Bagadiya Nagadiya Nagar Garkheda Aurangabad (Defendant No 1) 2 - Mr. Ganesh T Saraf Founder And Managing Director Gshan Infrabuild Llp Resident Of Gshan Infrabuild Llp. Registered Office - 7and 8 Sahyadri Hilss Bagadiya Nagadiya Nagar Garkheda Aurangabad 3 - Mrs. Shraddha Saraf Director Resident Of Gshan Infrabuild Llp. Registered Office - 7and 8 Sahyadri Hilss Bagadiya Nagadiya Nagar Garkheda Aurangabad ... Applicants versus 1 - Sunil Agarwal S/o Radheshayam Agrawal Aged About 56 Years Proprietor Dinesh Trading Company R/o Plot No. 39, Industrial State Bhilai Police Station Jamul District - Durg (Plaintiff) ... Respondent(s) For Applicants : Mr. Tapan Kumar Chandra, Advocate For Respondent(s) : Ms. Sweksha Sharma, Advocate Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 05.12.2025 1. This Civil Revision is filed under Section 115 of the Code of Civil Procedure, 1908 (CPC), challenging the order dated 12.07.2024 (Annexure P/1) passed by the Fifth Additional District Judge, Digitally signed by SHAYNA KADRI 2 District - Durg (C.G.) in Civil Suit No. 34B/2023. The Trial Court dismissed the defendant's application under Order 7 Rule 11 of the CPC, which questioned the maintainability of the suit in light of an existing arbitration agreement between the parties. 2. Facts of the present case, in brevity, are that the respondent/plaintiff instituted a civil suit before the Second Additional District Judge, Durg seeking recovery of Rs. 22,53,086/- for supply of materials such as angles, channels, joists, plates, HR plates and PM plates. The defendants filed their written statement denying the transactions and their liability, and specifically contending that defendant Nos. 2 and 3 were not responsible for any dealings between defendant No. 1 and the plaintiff. They further objected to the jurisdiction of the Durg Court, asserting that, in view of the terms of the purchase order dated 19.12.2019, particularly the dispute-resolution clause which mandates arbitration and confers exclusive jurisdiction upon the courts at Aurangabad (Maharashtra), only the Aurangabad Courts are competent. Relying on this clause, the defendants filed an application under Order VII Rule 11 CPC seeking rejection of the plaint. The plaintiff filed a reply opposing the application. After hearing the parties, the Trial Court dismissed the defendants’ application on the ground that Clause 20 of the purchase order did not appear to have been incorporated with the plaintiff’s consent. Aggrieved by the rejection of their application under Order VII Rule 11 CPC, the defendants have preferred the present revision. 3 3. Learned counsel for the applicants submits that the materials were supplied by the plaintiff pursuant to the purchase order dated 19.12.2019, and therefore, notwithstanding the absence of the plaintiff’s signature on the purchase order, the conduct of the parties and their seller–purchaser relationship clearly indicate acceptance of the terms and conditions contained therein. Reliance is placed on the judgment of the Hon’ble Supreme Court in Ajay Madhusudhan Patel & Others v. Jyotrindra S. Patel & Others, Arbitration Petition No. 19 of 2024, (2024) LiveLaw (SC) 727, wherein it has been held that the conduct and relationship of non-signatory parties with signatories may evince an intention to be bound by the terms of the contract. It is urged that the plaintiff, having supplied materials pursuant to the purchase order, is bound by its terms, including the dispute- resolution and jurisdiction clauses. It is further contended that the order passed by the learned Trial Court is illegal, perverse and contrary to law, rendering it unsustainable, reliance being placed on Amar Nath Vij v. M/s Bhairav Textiles & Ors.. The applicants, therefore, pray that the revision be allowed, the order dated 12.07.2024 be set aside, and the plaint be rejected in view of the plaintiff’s non-compliance with the jurisdiction clause of the purchase order. 4. Learned counsel for the respondent/plaintiff submits that the purchase order dated 19.12.2019 was never signed or consciously accepted by the plaintiff, and therefore its dispute- 4 resolution and jurisdiction clauses cannot bind him. It is contended that mere supply of materials does not imply consent to the arbitration clause or exclusive jurisdiction clause, particularly when such terms were not mutually agreed upon. The respondent supports the impugned order, submitting that the Trial Court rightly held that Clause 20 was not incorporated with the plaintiff’s consent. It is argued that the application under Order VII Rule 11 CPC was misconceived and was rightly dismissed. The respondent therefore prays for dismissal of the revision. 5. I have heard both the counsel for the parties and perused the documents and utmost circumspection. 6. This Civil Revision under Section 115 of the Code of Civil Procedure, 1908, calls in question the order dated 12.07.2024 passed by the learned Fifth Additional District Judge, Durg, in Civil Suit No. 34-B/2023, whereby the applicants’ application under Order VII Rule 11 CPC seeking rejection of the plaint on the basis of an alleged arbitration clause and exclusive jurisdiction clause was dismissed. 7. In the matter of C. L. Athnagar & Ors. Vs. Hariman Lal Sahu 1 the Co-ordinate Bench of this Court had has considered this aspect vide Paragraph 31 which is reproduced hereinbelow:- “31 A focused perusal of the above-stated judgments would show that Section 8 of Ne Act of 1996 is mandatory in nature and further that in cases where there is an arbitration clause in the 1 (2017) SCC OnLine Chh 321 5 agreement, it is obligatory for the Court to refer the parties to the arbitration in terms of the arbitration agreement. The Supreme Court has already held that jurisdiction of the civil Court is barred after an application under Section 8 of the Act of 1996 is made for arbitration and in view of that, a separate application is required to be filed under Section 8(1) of the Act of 1996 for referring the dispute to the arbitration fulfilling the requirements of Section 8 of the Act. It cannot be held that the civil Courts shall not have jurisdiction to entertain the suit only because there is an arbitration clause in the contact for referring the dispute to the arbitrator and it will not be a case of total ouster of the jurisdiction of the civil Court. Therefore, it cannot be held that once it is found that the contract between the parties contains an arbitration clause, jurisdiction of the civil Court stands ousted automatically and is barred explicitly. To take benefit of arbitration clause, party to the contract has to apply for that relief under Section 8(1) of the Act of 1996 within a specific period. Therefore, we hold that merely because there is an arbitration clause in the Memorandum of Association read with Section 201 of the Act of 1956 for referring the dispute and claim to the arbitration, the civil Court's jurisdiction is not barred but the same is subject to Section 8(1) of the Act of 1996 and its compliances. Therefore, we further hold that the Trial Court was not justified and acted with illegality while allowing the application of the defendant under Order 7 Rule 11 of CPC and thereby rejecting the plaint.” 8. Having considered the aforesaid aspects of the matter, it is well settled that the issue of jurisdiction cannot be decided solely on the basis of objections raised by the defendant at the stage of considering an application under Order VII Rule 11 of the Code of Civil Procedure. At this preliminary stage, the Court is required to examine only the averments made in the plaint, and not the 6 defences raised in the written statement or otherwise. Furthermore, the question of jurisdiction, particularly where it involves mixed questions of law and fact, can be adjudicated only during the course of trial after framing of appropriate issues and affording an opportunity to the parties to lead evidence. A suit cannot be dismissed at the threshold under Order VII Rule 11 CPC merely on the ground that the Court lacks jurisdiction, unless the lack of jurisdiction is apparent from the averments in the plaint itself. 9. In the present case, as observed in the preceding paragraphs, a Co-ordinate Bench of this Court has already held that the jurisdiction of the Civil Court is not ousted merely on the ground that an arbitration clause exists in the agreement. Therefore, the bar of jurisdiction as contended by the defendant does not apply in the facts of the present case. 10. In view of the above discussion, I do not find the present case to be a fit one for exercise of the revisional jurisdiction of this Court. Accordingly, the revision petition being devoid of merits, is hereby Dismissed. Sd/- (Amitendra Kishore Prasad) Judge Shayna