ORDER
S.P. Khare, J.
1. This is a revision by the defendant against the order by which his prayer under Section 8(1) of the Arbitration & Conciliation Act, 1996 (hereinafter to be referred to as ‘the Act’) has been rejected.
2. The plaintiff has filed a civil suit for recovery of Rs. 90,000/- (Rupees Ninety thousand) and interest. The defendant filed his written statement on 17-1-2000 and raised an objection that the dispute is covered by the arbitration agreement between the parties and, therefore, the Court should refer the parties to arbitration. By the impugned order the Trial Court has refused to do so on the ground that this objection was not raised earlier and, therefore, the defendant has agreed to submit to the jurisdiction of the Court for the decision of this dispute. The Trial Court has relied upon the decision of this Court in Laxminarayan v. Food Corporation of India (1992 JLJ 415).
3. The point for determination in this revision is whether the view taken by the Trial Court is correct. After hearing the learned Counsel for both the sides, the Court is of opinion that the impugned order is legally incorrect. Section 8(1) of the Act provides :–
“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,”
4. This provision has been the subject matter of interpretation recently in Kalpna Kethari v. Sudha Yadav and Ors., (2002) 1 SCC 203, in which it has been pointed out:–
“The provisions of Section 34 under the 1940 Act have nothing to do with actual reference to the arbitration of the disputes and that was left to be taken care of under Sections 8 and 20 of the 1940 Act. In striking contrast to the said scheme underlying the provisions of the 1940 Act, in the new 1996 Act, there is no provision corresponding to Section 34 of the old Act and Section 8 of the 1996 Act mandates that the judicial authority before which an action has been brought in respect of a matter, which is the subject-matter of an arbitration agreement, shall refer the parties to arbitration if a party to such an agreement applies not later than when submitting his first statement. The provisions of the 1996 Act do not envisage the specific obtaining of any stay as under the 1940 Act, for the reason that not only the direction to make reference is mandatory but notwithstanding the pendency of the proceedings before the judicial authority or the making of an application under Section 8(1) of the 1996 Act, the arbitration proceedings are enabled, under Section 8(3) of the 1996 Act to be commenced or continued and an arbitral award also made unhampered by such pendency.”
5. The decision on which the Trial Court has relied upon was under Section 34 of the Arbitration Act, 1940 and, therefore, it has no applicability to the present case in which the provisions of the new Act would be applicable. The Trial Court should consider whether the conditions for the applicability of Section 8(1) of the Act are satisfied in the present case. Those conditions are:–
(a) there must be an arbitration agreement between the parties; (b) a party to that agreement must bring an action before a judicial authority against another party thereto; (c) such action must be in respect of "a matter which is the subject of an arbitration agreement"; (d) the application of a party must be made not later than when submitting his first statement on the substance of the dispute; and (e) the application should be accompanied by the original arbitration agreement or a duly certified copy thereof. 6. This revision is allowed. The impugned order is set aside. The Trial Court is directed to decide the question of reference of dispute to arbitration in view of the Section 8(1) of the Act.