Arbitration and Conciliation Act, 1996
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.
Appointment of Arbitrator
It is not duty of court to adjourn a matter to enable parties to report to court about appointment of Arbitrator and then make reference; Pawan Sharma v. Tarkeshwar Shah, AIR 2007 (NOC) 156 (HP).
Expression—First statement on the substance of the dispute
The expression ‘first statement on the substance of the dispute’ contained in sub-section (1) of section 8 must be contra-distinguished with the expression ‘written statement’. It employs submission of the party to the jurisdiction of the judicial authority. What is, therefore, needed is a finding on the part of judicial authority that the party has waived his right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, the party cannot be said to have waived his right or acquiesced himself to the jurisdiction of the court; Rashtriya Ispat Nigam Ltd. v. Verma Transport Company, AIR 2006 SC 2800.
Jurisdiction of Civil Court
(i) The language of section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator; P. Anand Gajapathi Raju v. P.V.G. Raju (Dead), 2000 (4) SCC 539.
(ii) Mere existence of arbitration clause in agreement does not bar jurisdiction of Civil Court automatically; Mahesh Kumar v. Rajasthan State Road Transport Corporation, AIR 2006 Raj 56.
Power of Court to appoint Arbitrator
Power of Court to refer parties for arbitration would and must necessarily include, imply and inhere in it the power and jurisdiction to appoint Arbitrator also; Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., Kochi, AIR 2007 (NOC) 233 (Ker).
Scope and object
Scope and object of section 8 of the Arbitration and Conciliation Act, 1996 and section 34 of the Arbitration Act, 1940 is different. Therefore, these two respective provisions of different Acts have no application to deprive the party of the legitimate right to invoke section 8 of the Arbitration and Conciliation Act to have the matter relating to the disputes referred to arbitration, in terms of the arbitration agreement; Kalpana Kothari v. Sudha Yadav, AIR 2001 SC 404.