ORDER
Y.P. Nargotra, J.
1. The question arising for consideration in this revision petition is whether the following clause existing in the constitution of Sharika Peeth Sanastha, a registered society, constitutes and arbitration clause within the meaning of Arbitration and Conciliation Act ?
“No clause of the constitution shall be enforceable in the Court of law. However, immediately after the registration of the constitution with the J & K Govt. the executive Committee should constitute an arbitration committee comprising of members other than those included in any of the committees mentioned in this constitution so far. Those nominated to arbitration committee should as far as possible be members of highest degree of integrity independent opinion and law knowing.”
2. Admittedly no committee as envisaged by the abovesaid clause has been constituted. Arbitration agreement is defined in Section 7 of the Arbitration and Reconciliation Act. It reads as under :–
“7. Arbitration Agreement:– In this part “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship whether contractual or not.”
3. From the bare reading of the section it is manifest that arbitration agreement is an agreement whereby the parties agree to submit all or certain disputes which have arisen or which may arise in future to be referred for adjudication through arbitration by an Arbitral Tribunal. In K.K. Modi v. K.N. Modi, AIR 1998 SC 1297 it was held :-
“Among the attributes which must be present for an agreement to be considered as an arbitration agreement are (1) The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement (2) That the jurisdiction of the tribunals to decide the rights of parties must derive either from the consent of the parties or from an order of the Court or from a statute, the terms of which make it clear that the process is to be an arbitration, (3) The agreement must contemplate that substantive rights of the parties will be determined by the agreed tribunal, (4) That the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides, (5) That the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly, (6) The agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.
The other facts which are relevant include, whether the agreement contemplates that the tribunal will receive evidence from both sides and hear their contentions or at least give the parties an opportunity to put them forward.; Whether the wording of the agreement is consistent or inconsistent with the view that the process was intended to be an arbitration, and whether the agreement requires the tribunal to decide the dispute according to law.”
4. In the present case above quoted clause of the agreement provides that no clause of the constitution shall be enforceable in the Court of law. Expressly it does not say as to whether any dispute arising with regard to” any clause of the constitution shall be referable to an Arbitral tribunal or committee for adjudication but by implication from the bare reading of the above clause it appears to be the intention of the parties that whenever such dispute arises that shall be referred to Arbitration Committee for adjudication but there is noting in the clause which can be construed to contemplate that the parties agreed that the decision of the Arbitration Committee shall be final and binding upon the parties to the agreement. Moreover, no arbitration committee has been constituted pursuant to the said clause of the constitution. The basic concept of the arbitration appears to be that the parties must repose trust and faith in a person or a committee chosen to be the Arbitrator and agree to accept his decision. Assuming that such a committee has been constituted, there is nothing in the clause whereby the parties have agreed that the finding or decision of the committee shall be binding upon the parties. The essence of ingredients of the arbitration agreement being missing from the arbitration clause, the above clause, in my view cannot be said to be an arbitration agreement within the meaning of the Act.
5. Learned Trial Court, therefore, was justified in rejecting the application of the respondent herein filed before it seeking dismissal of the suit on the plea that in view of the arbitration clause the jurisdiction of the trial Court was barred. There is no merit in this revision petition, which is accordingly dismissed.
Record of the trial Court, along with a copy of this judgment, be returned back. Learned counsel for the parties are directed to appear before that Court on 15-4-2004.