Mere Non­-Filing Of Original/Certified Copy Of Arbitration Agreement Does Not Entail Dismissal Of Application For Reference: SC [Read Judgment]

What is prohibited is the entertainment of the application unless it is accompanied by the original arbitration agreement or a duly certified copy thereof, the Court said.

The Supreme Court in Ananthesh Bhakta vs. Nayana A. Bhakta, has observed that filing of an application seeking reference to arbitration under Section 8(2) of the Arbitration and Conciliation Act, 1996, without producing original or certified copy of the arbitration agreement, shall not entail rejection of the application under Section 8(2), if the applicant brings the original arbitration agreement on record at the time when the court is considering the application.

A bench comprising Justice RK Agrawal and Justice Ashok Bhushan also held that when the partners and those who claim through partners of an unregistered partnership, agreed to get the dispute settled by arbitration, there is no bar in referring it to arbitration.

In a suit for partition, the defendants had filed an application under Section 8(1) of Arbitration and Conciliation Act, 1996, relying on arbitration agreement in retirement deed as well as in the partnership deed dated. Parties to the suit were referred to the arbitration by the District Court to settle the dispute as per arbitration agreement. The said order was affirmed by the High Court.

On appeal, the apex court rejected the contention that it is mandatory to file the original arbitration agreement or a duly certified copy thereof along with the application seeking reference to the arbitration, observing thus: "what is prohibited is the entertainment of the application unless it is accompanied by the original arbitration agreement or a duly certified copy thereof."

Referring to Martin and Harris Ltd. Vs. VIth Additional District Judge  and  Hindusthan Commercial Bank Ltd. Vs. Punnu Sahu (Dead) through Legal Representatives, the court observed that that word 'entertained' in Section 8(2) of the Act, could not mean 'institution' of such proceedings.

Read the Judgment here.

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