Filing Certified Copy of Arbitration Agreement Not Required Under Section 8 When Same Agreement Is Undisputed and Already on Record: Gujarat High Court
Safiya Malik
The High Court of Gujarat, Single Bench of Justice Maulik J. Shelat dismissed a petition challenging a trial court’s decision to refer a construction-related contractual dispute to arbitration. The Court clarified that an application under Section 8 of the Arbitration and Conciliation Act, 1996, cannot be rejected solely because a certified copy of the arbitration agreement is not filed when the same agreement is already part of the record and not disputed by the parties. Justice Shelat observed that the absence of a certified copy does not invalidate such an application if the arbitration clause is undisputed and forms part of the existing agreement.
The dispute arose from a construction contract between a developer and a contractor concerning work related to an industrial logistics park project. The petitioner, engaged in construction activities, claimed that the respondents had failed to make payment for work executed under the terms of the agreement. The agreement contained a clause providing for resolution of disputes through arbitration.
Following differences between the parties regarding the payment and completion of the project, the petitioner approached the civil court seeking recovery of the outstanding amount along with other reliefs. In response, the respondents filed an application under Section 8 of the Arbitration and Conciliation Act, 1996, requesting that the matter be referred to arbitration in accordance with the arbitration clause contained in the agreement. The respondents submitted that since the contract expressly provided for arbitration, the civil court lacked jurisdiction to proceed with the matter.
The petitioner opposed the application contending that the respondents had not produced a certified copy of the arbitration agreement along with their application, as required under Section 8(2) of the Arbitration Act. It was argued that non-compliance with this procedural requirement rendered the application defective and invalid. The respondents countered that the agreement, which included the arbitration clause, was already part of the case record and its existence was not disputed by either party, thereby satisfying the statutory intent.
The trial court accepted the respondents’ contention and referred the parties to arbitration. Aggrieved by that order, the petitioner approached the High Court challenging the trial court’s interpretation of Section 8 and arguing that the absence of a certified copy of the arbitration agreement vitiated the order. The petitioner sought to set aside the direction to refer the dispute to arbitration and requested continuation of the civil proceedings.
The Court observed that the contract between the parties clearly contained an arbitration clause which read: “In the event a dispute the Parties shall have a period of thirty (30) days after notice date to resolve the dispute amicably. If such dispute is not resolved then matter, shall be referred to Arbitration. The arbitration shall take place in Mumbai. There shall be one arbitrator appointed mutually. The arbitral award shall be final and binding on the Parties.”
On the maintainability of the application, the Court stated that “though titled as filed under Order VII Rule 11 CPC, the application was also filed under Section 8 of the Act, 1996. The trial court has not exercised its power under Order VII Rule 11(d) of CPC having not rejected the plaint by holding it barred by law, but entertained it treating it as filed under Section 8 of the Act.” The judge held that the application was maintainable in law.
The Court Observed: “when the original or copy of the agreement is before the court, it is not relevant whether it is produced by the plaintiff or the defendant. Once the existence of the arbitration clause is not disputed, the requirement of Section 8(2) is met.”
Citing precedents including Rupal Textile and Partners v. M/s Rupal Textile Mahendra H., Comed Pharmaceuticals Ltd. v. Blue Star Ltd., and the Supreme Court’s decision in K. Mangayarkarasi v. N.J. Sundaresan (2025 2 GLH 783), the Court reiterated: “Once there is an arbitration agreement between the parties, a judicial authority before whom an action is brought covering the subject matter of the arbitration agreement is under a positive obligation to refer parties to arbitration. There is no element of discretion left in the court.”
Justice Shelat recorded: “I do not find any merit in the present writ application, inasmuch as, there is no jurisdictional error much less any error of law committed by the trial Court while allowing the impugned application filed under Section 8 of the Act, 1996.” The Court held that both parties had produced the same agreement containing the arbitration clause, which “would suffice and meet with the requirement to maintain an application under Section 8 of the Act, 1996.”
“This Court, having limited jurisdiction under Article 227, cannot interfere with every order passed by the trial court as a drop of a hat unless a jurisdictional or gross error of law is shown.” Referring to Sameer Suresh Gupta v. Rahul Kumar Agarwal (2013 9 SCC 374) and Garment Craft v. Prakash Chand Goel ((2022) 4 SCC 181), the Court stated judicial restraint in supervisory jurisdiction.
“It would be open for the plaintiff to make suitable pleadings in the arbitration claim application where it may seek an exclusion of period spent before the civil court and this Court, if the ingredients of Section 14 of the Limitation Act, 1963 are made out.”
“In view of the foregoing conclusion, the present writ application is bereft of any merit and requires to be rejected, which is hereby rejected. Rule discharged. No order as to costs.”
Advocates Representing the Parties
For the Petitioner: Mr. Rasesh H. Parikh and Mr. Hemang H. Parikh, Advocates
For the Respondents: Mr. Manish J. Patel, Advocate
Case Title: M/s Techtix Engineers v. M/s Megastone Logipark Pvt. Ltd. & Ors.
Case Number: R/Special Civil Application No. 6878 of 2023
Bench: Justice Maulik J. Shelat
