Copy Of Arbitration Agreement Sufficient Where Original Not Available: Calcutta High Court

The Calcutta High Court on Thursday held that an application seeking reference to arbitration cannot be rejected merely because the original arbitration agreement or a certified copy is not produced, if the statutory requirements under the Arbitration and Conciliation Act are otherwise satisfied.

A Single Bench of Justice Hiranmay Bhattacharyya set aside the orders of the trial court and the first appellate court, which had refused to refer the parties to arbitration.

The court observed that the courts below had adopted a “hyper-technical” approach and conducted a “mini trial” at the referral stage by holding that the dispute over the return of documents fell outside the scope of the arbitration clause.

“This Court accordingly holds that when the original arbitration agreement or a duly certified copy thereof is not available with the party applying for reference to arbitration under Sub-section 1 of Section 8 of A & C Act, such application can be entertained if it is accompanied by a copy of arbitration agreement,” the bench observed.

The dispute arose out of a development agreement dated March 7, 2012 between Akankha Nirman Private Limited and Supreme Construction. According to Supreme Construction, it had handed over original title deeds and related property documents to the developer to facilitate a housing project.

Through a legal notice dated April 21, 2021, Supreme Construction terminated the unregistered development agreement and sought return of the documents. Alleging wrongful withholding of those documents, it filed a suit seeking a mandatory injunction directing their return and restraining the developer from claiming any rights on the basis of those documents.

On receipt of summons, Akankha Nirman filed an application under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996, seeking a stay of the suit proceedings and reference of the dispute to arbitration in view of the arbitration clause contained in the development agreement.

By an order dated April 24, 2023, the trial court rejected the application, holding that the dispute over non-return of documents was unrelated to the terms of the agreement. The first appellate court affirmed that view on June 25, 2025.

Challenging both orders under Article 227 of the Constitution, the petitioners argued that the dispute fell within the broad wording of the arbitration clause, which covered “any other matter arising out of or any manner related thereto.” At the referral stage, they contended, the court's role was limited to examining whether a valid arbitration agreement existed.

Senior Advocate Piyush Chaturvedi, appearing for Supreme Construction, opposed the plea, arguing that the Section 8 application was defective since it was not accompanied by the original arbitration agreement or a duly certified copy, as mandated under Section 8(2). He further contended that the original agreement was in the petitioners' custody.

Rejecting this objection, the High Court examined the proviso to Section 8(2). The Court held that the proviso was intended to ensure that a party is not prejudiced merely because the original arbitration agreement is retained by the opposite side, and that referral to arbitration is not defeated on technical grounds.

The court held that the appellate court's finding that no prayer was made for production of the original agreement “suffers from perversity,” noting that the petitioners had called upon the opposite party to produce the original development agreement.

On the scope of the arbitration clause, the court held that “termination and cancellation of development agreement and return of documents are intertwined” and that the dispute for return of documents “would squarely fall within the expression 'any other matter arising out of or any manner related thereto' appearing in the arbitration clause.”

Relying on the Supreme Court's ruling on limited judicial scrutiny at the referral stage, the bench emphasised that the arbitral tribunal is the preferred first authority to determine issues of arbitrability and that courts should not conduct a “mini trial” under Section 8 unless it is a clear case of non-arbitrability.

Allowing the civil revision petition, the High Court set aside the orders dated June 25, 2025 and April 24, 2023. The application under Section 8 was allowed, and the parties were referred to arbitration.

The Court also rejected a prayer for stay of operation of its judgment.

For Petitioners (Akankha Nirman Private Limited & Anr): Senior Advocate Aniruddha Chatterjee, Advocates Abir Lal Chakraborty and Suman Banerjee

For Opposite Parties (M/s. Supreme Construction & Ors.): Senior Advocate Piyush Chaturvedi, Advocates Debapriya Ghosh and Vinayak Chaturvedi