Certified Copy Of Original Arbitration Agreement Attested By 'Notary Public' Is Sufficient Under S. 8(2) Of Arbitration Act: Calcutta High Court

Section 8(2) of the Arbitration Act provides, “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.”

Brief Facts:

Ms Manju Khati (“Opposite Party”) instituted a suit before the trial court for an injunction, declaration, and consequential relief against M/s Fullerton India Credit Limited (“Petitioner”). Summons were received by the Petitioner. In response, the Petitioner filed a Section 8 Application under the Arbitration and Conciliation Act, 1996 (“Arbitration Act”), seeking the reference of the dispute to arbitration in the trial court. The application was rejected. Therefore, the Petitioner filed a revisional application under Article 227 of the Indian Constitution before the High Court of Calcutta (“High Court”).

The Opposite Party filed a written objection by contending that the trial court had already dismissed the Section 8 application filed by the Petitioner. After the said dismissal, the Petitioner filed an application under Article 227 of the Indian Constitution to invoke the revisional jurisdiction of the High Court. The High Court allowed the revision application and remanded the matter back to the trial court. However, the trial court again dismissed it.

Despite filing the written version, the Opposite Party failed to appear and contest the revisional application filed by the Petitioner. The Petitioner submitted that the trial court failed to consider all the statements made out in the application filed under Section 8, read with Section 5 of the Arbitration Act. Further, since an arbitration agreement existed between the Petitioner and the Opposite Party, the trial court had no jurisdiction to entertain the said dispute.

Observations of the Court:

The High Court held that the Trial Court wrongly concluded that the Petitioner had failed to produce either the original or a duly certified copy of the agreement as required under the Arbitration Act. However, it was established that the Petitioner did provide a certified copy of the original agreement, attested by a Notary Public. This was deemed sufficient to meet the legal requirements.

Furthermore, the High Court noted that the Opposite Party had initiated legal proceedings seeking various reliefs, including declaration, injunction, and consequential reliefs under the CPC. Despite the existence of a specific arbitration clause in the agreement between the parties, which mandated the resolution of disputes through arbitration, the Trial Court erred in refusing to refer the matter to arbitration. This refusal was based on the misconception that the arbitration clause only applied to disputes directly connected with the agreement, which was deemed improper by the High Court.

The High Court referred to the case of Sundaram Finance Limited Vs. T. Thankam [(2015) 14 SCC 444], emphasizing the importance of the court's obligation to refer parties to arbitration once an application in compliance with Section 8 of the Arbitration Act is filed. The High Court also analyzed the provisions of Section 8 of the Arbitration Act, emphasizing that once certain prerequisites are met, the court must refer the parties to arbitration without discretion.

As a result, the order of the Trial Court was set aside, and the Trial Court was directed to refer the matter to arbitration within 1 month of receiving the copy of the order.

Case Title: M/s Fullerton India Credit Company Limited vs Ms Manju Khati

Case No.: C.O. No. 3689 of 2015

Advocate for the Petitioner: Mr Shaunak Mukherjee, Mr Amitava Mitra, Ms Antara Choudhury, Ms Sanghamitra Majumder and Mr P. Sinha

Advocate for the Opposite Parties: N.A.

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