Filing Original Arbitration Agreement or Certified Copy is a Mandatory Requirement

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July 10, 2018

Case name: Union of India & Others v. M/s. K. Kapoor & P.R. Mahant Khandwa

In this recent case, the High Court of Madhya Pradesh reiterated the settled position of law that filing an original arbitration agreement or duly certified copy thereof is a mandatory requirement to refer the matter to the arbitration.

In the case, the defendant had objected the civil suit instituted by the Plaintiff on the ground that in view of the Arbitration Clause available in the agreement, Civil Suit was not maintainable.

The Lower Court rejected the Defendant’s application under Section 8 of the Arbitration Act, 1996 on the ground that the original or the certified copy of the arbitration agreement was not filed. Aggrieved by the said order, the Defendant i.e. the present Plaintiff approached the High Court.

The High Court of Madhya Pradesh upheld the Lower Court’s order on the basis of the following observations:

  • That the language of sub-section (2) of Section 8 of the Act of 1996 is very specific and clear, according to which, the filing of original arbitration agreement or a duly certified copy thereof was a mandatory requirement for moving an application under Section 8 of the Act of 1996 or raising an objection that the matter should be referred to the arbitration.
  • That raising an objection regarding proceeding in civil suit and moving application under Section 8 of the Act 1996 is nothing but a delaying tactics and as per the requirement of sub-section (1) of Section 8 of the Act of 1996, the party should submit his intention before submitting his first statement of the substance of the dispute[1].
  • The High Court also made reference to Supreme Court’s order in the case of Ananthesh Bhakta and Others vs. Nayana S. Bhakta and Others[2], to hold that filing an original arbitration agreement or duly certified copy thereof is mandatory requirement to refer the matter to the arbitration[3].
  • That if there is a non-compliance of the said mandatory requirement, no order for referring the dispute to the arbitration could have been passed in a Civil Suit.

The entire case can be accessed here.

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[1] Anil Mahindra & Anr. Vs. Surender Kumar Makkar & Anr., C.M.(M) 243/2016.

[2] (2017) 5 SCC 185

[3] Atul Singh and others Vs. Sunil Kumar Singh and others, (2008) 2 SCC 602