Anil Kumar Choudhary, J. - Heard the parties through Video Conferencing.

2. This writ application has been filed by the petitioner with a prayer for quashing the order dated 21.01.2013 passed by Civil Judge, Sr. Division-1, Jamshedpur in Money Suit No. 26 of 2011 whereby and where under, learned trial court has rejected the petition dated 10.04.2012 filed by the petitioner under section 8 of Arbitration and Conciliation Act. It is next submitted by learned counsel for the petitioner that respondent of this writ petition instituted said Money Suit no. 26 of 2011 for recovery of money. In the Money Suit no. 26 of 2011, the petitioner being the defendant of the suit appeared on 23.01.2012 and thereafter, took three adjournments for filing the written statement and thereafter, on 10.04.2012, the petitioner filed petition under section 8 of Arbitration and Conciliation Act, 1996 to refer the matter for arbitration. The respondent herein who was plaintiff in the suit, filed its objection to the said petition mainly on the ground that the reference of the matter to arbitration will result in delay. The learned trial court after hearing the parties, rejected the said petition, on the ground that as the defendant first sought time for filing the written statement and later on filed petition under section 8 of Arbitration and Conciliation Act, 1996, he has lost the opportunity, which was available to him under section 8 of Arbitration and Conciliation Act, 1996 and accordingly, he rejected the said petition of the petitioner dated 10.04.2012, on technicality without going to the merits of the petition.

3. Relying upon the paragraph 36 of the judgment of Hon'ble Supreme Court of India in the case of Rashtriya Ispat Nigam Ltd. v. Verma Transport Co., (2006) 7 SCC 275 , [LQ/SC/2006/704] which reads as under :

36. The expression "first statement on the substance of the dispute" contained in Section 8(1) of the 1996 Act must be contradistinguished 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 the judicial authority that the party has waived its right to invoke the arbitration clause. If an application is filed before actually filing the first statement on the substance of the dispute, in our opinion, the party cannot be said to have waived its right or acquiesced itself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable. We would deal with this question in some detail, a little later." (Emphasis Supplied)

4. Learned counsel for the petitioner submits that filing a petition for time to file written statement, cannot be considered to be the "first statement" of a party to the dispute, as envisaged under section 8 of Arbitration and Conciliation Act, 1996, hence, the technical ground basing upon which, learned trial court has refused to entertain the petition under section 8 of Arbitration and Conciliation Act, 1996 on merit is erroneous. It is further submitted by learned counsel for the petitioner that it is the settled principle of law that when there is arbitration clause between the parties, referring the matter to arbitration is mandatory and in this respect the learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court of India in the case of A. Ayyasamy vs. A. Paramasivam, (2016) 10 SCC 386 , [LQ/SC/2016/1307] paragraph 32 of which reads as under :

"32. The Arbitration and Conciliation Act, 1996 does not in specific terms exclude any category of disputes civil or commercial from arbitrability. Intrinsic legislative material is in fact to the contrary. Section 8 contains a mandate that where an action is brought before a judicial authority in a matter which is the subject of an arbitration agreement, the parties shall be referred by it to arbitration, if a party to or a person claiming through a party to the arbitration agreement applies not later than the date of submitting the first statement on the substance of the dispute. The only exception is where the authority finds prima facie that there is no valid arbitration agreement. Section 8 contains a positive mandate and obligates the judicial authority to refer parties to arbitration in terms of the arbitration agreement. While dispensing with the element of judicial discretion, the statute imposes an affirmative obligation on every judicial authority to hold down parties to the terms of the agreement entered into between them to refer disputes to arbitration. Article 8 of the UNCITRAL Model Law enabled a court to decline to refer parties to arbitration if it is found that the arbitration agreement is null and void, inoperative or incapable of being performed. Section 8 of the 1996 Act has made a departure which is indicative of the wide reach and ambit of the statutory mandate. Section 8 uses the expansive expression "judicial authority" rather than "court" and the words "unless it finds that the agreement is null and void, inoperative and incapable of being performed" do not find place in Section 8."

5. Learned counsel for the petitioner, in this respect also relied upon the judgment of Hon'ble Supreme Court of India in the case of Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 , [LQ/SC/2003/676] paragraph 14 of which reads as under :

"14. This Court in the case of P. Anand Gajapathi Raju v. P.V.G. Raju has held that 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. Therefore, it is clear that if, as contended by a party in an agreement between the parties before the civil court, there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator. In the instant case the existence of an arbitral clause in the Agreement is accepted by both the parties as also by the courts below but the applicability thereof is disputed by the respondent and the said dispute is accepted by the courts below. Be that as it may, at the cost of repetition, we may again state that the existence of the arbitration clause is admitted. If that be so, in view of the mandatory language of Section 8 of the Act, the courts below ought to have referred the dispute to arbitration."

6. Learned counsel for the petitioner further drew the attention of the court to the copy of the petition under section 8 of Arbitration and Conciliation Act, 1996 dated 10.04.2012 filed by the petitioner in the trial court and submitted that in paragraph 2 therein, the arbitration clause has been quoted and drawing attention of the court to annexure 2 of this petition, which is the copy of the objection filed on behalf of the plaintiff to the said application under section 8 of Arbitration and Conciliation Act, 1996; filed by the defendant in the suit, learned counsel for the petitioner submits that there is no dispute regarding the existence of arbitration clause in the agreement between the parties by the respondent herein who was the plaintiff in the suit in the trial court. Hence it is submitted that in view of the settled principle of law, the impugned order be quashed and set aside and the trial court be directed to consider the said application under section 8 of Arbitration and Conciliation Act, 1996 dated 10.04.2012 filed by defendant in the suit on merit.

7. Mr. Arbind Kumar, learned counsel for the respondent submits that he has no instruction in this case from the respondent, though he has filed power on behalf of the respondent in this case.

8. Having heard the learned counsel for the petitioner and going through the records, this court is of the considered view that the petition for time to file a written statement can certainly not be treated the "first statement" as envisaged under section 8 of Arbitration and Conciliation Act, 1996. Thus, the learned trial court has erroneously considered the petition for time to file a written statement to be the "first statement" as envisaged under section 8 of Arbitration and Conciliation Act, 1996; of the defendant in the trial court, hence, the impugned judgment dated 21.01.2013 passed by Civil Judge, Sr. Division-1, Jamshedpur in Money Suit No. 26 of 2011 is not sustainable in law and is liable to be set aside.

9. Considering the facts of the case and the law discussed above, the impugned order dated 21.01.2013 passed by Civil Judge, Sr. Division-1, Jamshedpur in Money Suit No. 26 of 2011 is quashed and set aside and this writ application is disposed of with a direction to Civil Judge, Sr. Division-1, Jamshedpur to consider the application dated 10.04.2012 filed under section 8 of Arbitration and Conciliation Act, 1996 by the petitioner defendant, as per law; without being prejudiced by this order..

10. It is made clear that this court has not expressed any opinion on the merit of the petition under section 8 of Arbitration and Conciliation Act, 1996 filed by the defendant in the said Money Suit No. 26 of 2011.