ORDER
Sengupta, J.
1. This application has been taken out by the defendant No. 1 for dismissal of the above suit; alternatively, the suit be permanently stayed and order directing that the above suit does not appear as undefended suit till the disposal of the application. The grounds for dismissal of the suit, as it appears from the petition, is that there exists an arbitration agreement which has been entered into by and between the parties namely, the plaintiff and the defendant No. 1 and furthermore, this Court has no jurisdiction to entertain the suit in view of the Forum Selection Clause contained in the agreement. Going by the provision of Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) the reliefs sought, no suit can be dismissed under the aforesaid provision namely under Section 8 of the said Act. For convenience sake, Section 8 of the said Act is set out below:
8. Power to refer parties to arbitration where there is an arbitration agreement. – (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in Sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under Sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
2. It is clear thus that the Court, at the highest, if any application is allowed, can refer the parties to arbitration and cannot dismiss the suit. I am of the view that dismissal of the suit amounts to destroying the lis itself without hearing the suit or referring disputes for adjudication of the same by the different forums. However, it has now become settled law that the Courts are to look into the substance of the matter. Mr. Pratap Chatterjee, learned senior counsel appearing with Mr. Dhruba Ghosh, learned Counsel, submits that, the subject matter of the suit relates to termination of the contract in view of non-performance by the plaintiff and these disputes are covered by the arbitration agreement. He further submits that, at the first instance, this Court is not clothed with the jurisdiction to entertain the suit as the parties have chosen their own forum before the appropriate Court at Delhi. I, therefore, quote the relevant Forum Selection Clause on which reliance is placed by Mr. Chatterjee, as follows:
(f) The said General Conditions of Contract also provided for a Forum Selection Clause, as follows:
4.1. Settlement of Disputes
It is specifically agreed by and between the parties that all the differences or disputes arising out of the Agreement of touching the subject matter of the Agreement shall be decided by process of settlement and arbitration, as specified in Clause 57 of the General Condition of the Contract and the provision of the Indian Arbitration Act, 1996 shall apply and Delhi Court alone shall have exclusive jurisdiction over the same.
3. I think that before I decide whether the disputes canvassed in the petition amongst the parties are covered by the arbitration clause I should decide first the scope and applicability of the aforesaid agreement relating to jurisdiction.
4. Mr. Chatterjee contends that reading the heading namely, ‘settlement of dispute’ means dispute by any lawful forum and/or method whether adversarial or non-adversarial. Therefore, Court means under the said heading, ‘settlement of dispute’, any Court and does not have any specific reference to any arbitration Court. If the parties choose to file any suit ignoring above chosen forum it has to be filed in an appropriate Court, at Delhi not in Calcutta. Having regard to the place of business of both the parties the Courts at Delhi can be said to be normal Court and in ordinary circumstances Delhi Court could have been natural forum.
5. Mr. Ghosh while opposing the application contends that the Forum Selection Clause has no manner of application, firstly, the defendant No. 2 is not signatory to the agreement and secondly, if the clause is read carefully it would appear that the words “Delhi Court alone” refer to Court having jurisdiction in relation to the arbitration.
6. Having heard the learned Counsels on this issue I am of the view that, at this stage, I am to examine plainly contents of the plaint including the parties mentioned therein. Admittedly, defendant No. 2 is not a party to the arbitration agreement though he is an officer of the defendant No. 1. Therefore, the aforesaid jurisdiction clause at Delhi has no manner of application so far this defendant is concerned, as such, Forum selection Clause is not operative in this case.
7. If the words ‘settlement of dispute’ are read, it would appear the intention of the parties no doubt is to get the disputes resolved and settled by the mechanism of the arbitration agreement and according to me, court means and relates to the arbitration proceedings and it does not have any connection with nor operative in relation to any proceedings other than the arbitration proceedings. Under the said Act a contracting party is to approach a Civil Court under various circumstances and it will appear from amongst other following Sections – Sections 9, 34 and 37. I am of the view that the Court means as contemplated in the Arbitration and Conciliation Act, 1996 and not as mentioned in the Civil Procedure Code.
8. Mr. Chatterjee, therefore, contends that if the plaint is read carefully the substance of grievance is against the defendant No. 1 and there cannot be any grievance or cause of action as against the defendant No. 2, who is an officer and has acted in good faith of the defendant No. 1. Defendant No. 2 has been impleaded motivatedly in order to circumvent the arbitration clause and to bring the suit in this Court. The allegations contained in the plaint, according to him, are nothing but camouflage to make a false and fictitious claim as against the defendant No. 2
9. It will appear that there are joinder of several causes of action which can be splitted up. The dispute between the plaintiff and the defendant No. 1 can very well be settled by the arbitration clause, while the grievance as against the defendant No. 2 can be tried by the regular suit Court There will be no difficulty if this Court is of the view that action lies as against the defendant No. 2 to proceed against him in the suit and the disputes and differences between the plaintiff and defendant No. 1 can be referred to arbitration.
10. Mr. Ghosh, however, submits that the grievance of the plaintiff is that the contract has been terminated on the alleged ground of non performance and/or breach thereof arbitrarily and unauthorizedly. The defendant No. 2 is instrumental in terminating the contract. He further submits that the plaintiff has justiciable right as against the defendant No. 2 personally. An official of the State or instrumentality of the state cannot enjoy any immunity if he does not act bona fide and in lawful exercise of power and civil action against him lies if he exceeds his power and /or jurisdiction. Precisely in this case this has happened. The defendant No. 2 maliciously and with ill motive has terminated a contract. While examining this submission, I have gone through the plaint with great care. Prima facie there are allegations as against the defendant No. 2 for which action against him lies and the core issue in this matter as to whether (1) defendant No. 2 had any authority, power and /or jurisdiction to issue a letter of termination on behalf of the defendant No. 1 on the given facts and in the circumstances; (2) if not, then obviously the termination is wholly wrongful and defendant No. 1 while acting pursuant to the letter issued by the defendant No. 2 terminated the contract illegally. As such, the plaintiff is entitled to damages and compensation.
11. Needless to mention, various paragraphs as quoted herein, the distinct causes of action have been disclosed as against the defendant No. 2 which has got relation or nexus to the termination of the contract. I am of the view the cause of action disclosed in the plaint cannot be splitted up as the causes of action as against both the defendants are interlinked with each other. Therefore, under no circumstances, two separate proceedings are permissible. Defendant No. 2 is not signatory to the contract and he cannot be termed to be an agent of the defendant No. 1. He is an official and cause of action arises against him individually not in the capacity of an official of defendant No. 1. According to me, the decision is of no assistance. In this reported case, factually an agent was involved along with the principal. Civil act and action of agent under law, always binds the principal except under the circumstance and case under Section 230 of the Contract. In that case, there was an arbitration agreement binding the agent and not binding the principal specifically as a party to the arbitration agreement. Therefore, it was held that an agent being party to the arbitration agreement, binds the principal. Factually, therefore the case is distinguishable.
12. Similarly the judgment of this Court cited by Mr. Chatterjee is of no help on the facts and circumstances of this case. Under these circumstances, I do not find any merit in this application and the same is dismissed.
13. Let the suit be tried by this Court accordingly. It would be open for the defendants to file written statement, if so advised, within a period of four weeks from the date of receipt of signed copy of this Order. If the written statement is filed there would be cross order for discovery within a fortnight thereafter; inspection forthwith. Parties would be entitled to pray early hearing of the suit.
14. All parties concerned are to act on a xerox signed copy of this dictated order on the usual undertakings.