1 33 wp 5108.19 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5108 OF 2019 Satish Vijaykant Moog and another .. Petitioners Versus Sunil Balram Mahajan and others .. Respondents Shri Rugved R. Kinkar, Advocate i/by Drupad S. Patil, Advocate for the Petitioners. Shri Pandit Kasar, Advocates for the Respondent Nos. 1 to 4. CORAM : SHAILESH P. BRAHME, J. DATE : 16TH JULY, 2026. FINAL ORDER : . Heard both sides finally with their consent. 2. The petitioners are taking exception to the order dated 24.01.2019 passed below Exhibit 33 refusing to refer the matter to the arbitration. 3. The grievance of the petitioners is that despite there being express provision of arbitral clause in the partnership deed dated 09.11.1999 to refer the dispute to arbitration, the Trial Court failed to do so. At the earlier occasion by filing application Exhibit 12 before written statement the matter was requested to be referred to the arbitrator. Immediately by filing written statement a specific plea was taken to that effect, still the Trial 2026:BHC-KOL:9902 2 33 wp 5108.19 Court did not refer the matter. Earlier application Exhibit 12 could not be prosecuted and that would not be an impediment for referring the matter to the arbitration, which is mandatory U/Sec. 8 of the Arbitration and Conciliation Act (for the sake of brevity and convenience hereinafter referred as to the “Act”). Accordingly, learned counsel for the petitioner Mr. Kinkar has advanced the submissions. 4. Learned counsel for the respondents submits that the conduct of the petitioners is objectionable. Application Exhibit 12 was not prosecuted diligently. The issues were framed on 04.02.2009, whereas the application Exhibit 33 was filed on 31.10.2018. It is contended that the suit proceeded further and the petitioners submitted to the jurisdiction. Any further reference to the arbitration would be in utter breach of Sec. 8(1) of the Act. The petitioners are adopting dilatory tactics. 5. Undisputely, there was partnership deed executed on 09.11.1999 between the parties having following arbitration clause : “18. If any dispute arises between the partners the same shall be referred to the Arbitration according to the Indian Arbitration Act for the time being in force and the decision of the Arbitrator or Arbitrators shall be final and binding on all the partners.” 6. The suit was filed by the respondents on 09.06.2008. Application Exhibit 12 was filed by the petitioners on 03.10.2008. 3 33 wp 5108.19 The written statement was filed on 06.10.2008. The issues were settled on 04.02.2009. The successive application U/Sec. 8 of the Act at Exhibit 33 was filed on 31.10.2018. 7. Earlier application U/Sec. 8 of the Act at Exhibit 12 was not diligently prosecuted and it was ordered to be filed on 28.09.2016. It was not decided on merits. It is relevant to notice that in the written statement filed immediately after application Exhibit 12 a specific plea was raised in para No. 3 pointing out arbitration clause. 8. No sooner than existence of arbitration Act was brought to the notice of the Trial Court either by way of application or by written statement, the Trial Court should have taken cognizance thereof and examined as to whether the matter is entertainable by the Civil Court. It is an abdication of duty of the Court to entertain the suit without examining jurisdictional issue suo motu. Merely because suit proceeded further cannot be the reason to refuse to invoke power U/Sec. 8 of the Act. 9. Undisputedly there exists arbitral clause between the parties. Application Exhibit 12 was not decided on merits. The explanation that the lawyer could not appear when the order was passed on 28.09.2016, as he had passed away cannot be altogether discarded. The successive application cannot be faulted with. The Trial Court has given undue importance to the earlier application Exhibit 12. I find that the Trial Court 4 33 wp 5108.19 committed error of jurisdiction in refusing to refer the matter for arbitration just because the suit proceeded further. 10. Reliance is placed by the learned counsel for the petitioners on the judgment of the Delhi High Court in the matter of Sharad P. Jagtiani Vs. M/s Edelweiss Securities Ltd. reported in (2014) 4 Arb LR 94. I concur with the view taken by the Division Bench and the relevant extract is as follows : 15. 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 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. 11. Further reliance is placed on the judgment of the learned Single Judge of the Delhi High Court in the matter of Madhu Sudan Sharma and others Vs. Omaxe Ltd. reported in 2023 SCC OnLine Del 7136, inter alia relying upon the judgment of the Supreme Court in the matter of Sukanya Holdings (P) Ltd. Vs. Jayesh H. Pandhya reported in (2003) 5 SCC 531 reiterating the view in following paragraphs : “15. The next question for consideration is, whether the making of an application under Section 8 is necessary or the plea, substantially of Section 8 in the written statement, 5 33 wp 5108.19 suffices. Though Sub-section (1) of Section 8 merely talks of “if a party so applies” and which can also be in the written statement but Sub-sections (2)&(3) of Section 8 do mention an “application under Sub-section (1)”. However in my opinion, the legislative change as contained in Section 8 of the 1996 Act, as from Section 34 of 1940 Act is not indicative of an application, separate from the written statement being necessitated to be filed for invoking arbitration agreement between the parties. In fact, even in Arti Jethani17, it has been held that reference under Section 8 of the parties to arbitration can be made if the written statement itself contains a prayer for referring the disputes for arbitration. However, Arti Jethani to the extent it holds that there has to be a specific prayer for reference, with due respect to the judgment in Arti Jethani, is contrary to the mandate of Section 8. Section 8, as aforesaid, merely requires a party to the action before a judicial authority, to bring to the notice of the judicial authority that the action brought before the judicial authority is the subject of an arbitration agreement. As long as the same is done in the written statement, mere absence of a prayer or use of the words seeking reference to arbitration cannot come in the way of the obligation of the judicial authority to refer the parties to arbitration. 16. The Supreme Court in P. Anand Gajapati Raju18 which was not noticed in Arti Jethani, has held that “an application before a Court under Section 8 merely brings to the Court's notice that the subject matter of the action before it is the subject matter of an arbitration agreement”. It was further held that Section 5 of the 1996 Act brings out clearly the object thereof, namely that of encouraging resolution of disputes expeditiously and less expensively and that when there is an arbitration agreement, the Courts intervention should be minimal and Section 8 has to be construed keeping the legislative intention in mind. 17. In my view, the said legislative intent requires the Court to interpret Section 8 widely and not in a constricted and pedantic fashion, as would be the case if it were to be held that 6 33 wp 5108.19 though by filing a separate application simultaneously with the filing of the written statement, reference to arbitration would be made but not if the plea to the same effect is taken in the written statement or if it were to be held that the absence of a prayer in the application or the written statement “to refer the parties to arbitration” would take away a right of having the disputes adjudicated by the agreed mode of arbitration. 12. For the reasons stated above, I find that impugned order is unsustainable. I, therefore, pass following order O R D E R a. The writ petition is allowed. b. The impugned order 24.01.2019 passed below Exhibit 33 in S.C.S. No. 207 of 2008 is quashed and set aside and the application Exhibit 33 stands allowed. c. There shall be no order as to costs. [ SHAILESH P. BRAHME J. ] bsb/July 26