Isabella Mariam

The High Court of West Bengal Single Bench of Justice Aniruddha Roy dismissed a Master’s summons by a defendant company seeking rejection or return of the plaint and stay of a commercial suit, despite an admitted arbitration clause in the contract. The Court refused to treat the summons as a Section 8 request for arbitration, noting that referral can be sought only through a formal, stand-alone application with a specific prayer, and that a proper Section 8 application triggers mandatory referral. It added that the application must be filed at the earliest stage, no later than the party’s first statement on the dispute’s substance. A Master’s summons is a summons-based application under the Code of Civil Procedure seeking the Court’s directions in the proceeding.

The dispute arose from a commercial suit instituted by the plaintiff against the defendant in connection with contractual dealings governed by an agreement containing an arbitration clause. The defendant, instead of filing a written statement, took out a Master’s Summons seeking dismissal of the suit in limine, rejection or return of the plaint, and a stay of the suit. The defendant relied on the existence of an arbitration agreement and contended that the subject matter of the suit ought to be referred to arbitration under the Arbitration and Conciliation Act, 1996.

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In support of the Master’s Summons, the defendant filed an affidavit asserting that the reliefs sought should be treated as a request under Section 8 of the Arbitration and Conciliation Act. The plaintiff opposed the application, contending that the prayers made were not maintainable under Section 8 and that no specific statutory application for reference to arbitration had been filed. Both parties admitted the existence of an arbitration clause.

The defendant relied on judicial precedents to argue that substance must prevail over form and that the application should be construed as one under Section 8. The plaintiff relied on decisions of the Calcutta High Court to contend that a separate and specific application under Section 8 was mandatory. The Court was required to determine whether the Master’s Summons could be treated as an application under Section 8 of the Arbitration and Conciliation Act.

The Court recorded at the outset that “parties have admitted the existence of the arbitration clause.” However, upon examining the prayers in the Master’s Summons, the Court noted that the defendant had sought “dismissal of the suit, rejection and return of the plaint and then stay of the suit.”

The Court quoted Section 8 of the Arbitration and Conciliation Act and observed that “there are few criterion which are essentially to be fulfilled as a precondition for applying under Section 8 of the Arbitration Act.” It identified these as the existence of a valid arbitration clause, an application by a party to the arbitration agreement, and filing of such application not later than the submission of the first statement on the substance of the dispute.

On the nature of the prayers, the Court observed that “dismissal or rejection of plaint, as prayed for, would not amount to reference of subject matter of the suit to arbitration.” It stated that “a plaint can be dismissed or rejected under a separate and independent statutory provision principally under Rule 11 to Order VII of the Code of Civil Procedure, 1908,” and that return of plaint and stay of suit were governed by distinct provisions of law.

The Court further recorded that “none of the prayers made in the Master’s Summons falls within the purview, scope or meaning of Section 8 of the Arbitration Act.” Addressing the argument based on statements in the supporting affidavit, the Court stated that “the moment prayers are considered from the Master’s Summons, it appears… that reliefs are claimed under different provisions of law and not under Section 8.”

The Court reiterated the settled principle that “when a statute prescribes to do certain thing in a certain manner, the thing has to be done in the same manner or not at all.” Relying on binding precedent of the Division Bench, the Court observed that “a clear, specific and overt act in the form of an independent, stand alone application is required.”

The Court expressly disagreed with the view that an application under Order VII Rule 11 CPC could be treated as one under Section 8, stating that “liberal construction or interpretation is not permitted” and that such an approach would “defeat the legislative intent.”

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The Court held that the application before it could not be treated as a statutory request for reference to arbitration. It recorded that “the instant application has been taken out praying for dismissal, rejection and return of plaint, which are not in compliance of the provisions under Section 8 of the Arbitration Act. The instant application cannot be construed and accepted as an application filed under Section 8 of the Arbitration Act. The instant application being IA No. GA-COM/2/2025 stands dismissed, without any order as to costs.”

Advocates Representing the Parties

For the Plaintiff: Mr. Abhrajit Mitra, Senior Advocate; Mr. Satadeep Bhattacharyya, Advocate; Mr. Samriddha Sen, Advocate; Mr. Arijeet Bera, Advocate

For the Defendant: Mr. Avishek Guha, Advocate; Mr. Shounak Mukhopadhyay, Advocate; Mr. Ankush Majumdar, Advocate; Ms. Sonal Agarwal, Advocate; Ms. Rayani Bhattacharyya, Advocate

Case Title: Jagannath Heights Pvt. Ltd. v. M/s Sammaan Capital Limited
Case Number: IA No. GA-COM/2/2025 in CS-COM/801/2024
Bench: Justice Aniruddha Roy