JUDGMENT 1. - This is a revision petition arising out of proceedings under the Arbitration Act going on before the District Judge, Udaipur. The revision petitioner Firm in response to an advertisement issued by the Municipal Council Udaipur inviting tenders, made an offer for authorisation to display, install and operate amusement rides at the stipulated places. The petitioner's offer was accepted and an agreement was entered into between the parties on 4.5.92. Some additional venues were added to the agreement by Corrigenda dated 26.5.93, 5.3.94 and 11.3.94. In the original agreement dated 4.5.92 an arbitration clause was incorporated. Some disputes arose between the parties and the revision petitioner filed an application under Section 20 of the Arbitration Act, 1940 for reference of the dispute to Arbitrator. In reply to this application, the non-petitioners-defendants filed a reply in which, they also took a plea that the agreement dated 4.5.92 was null and void for the reason that it was executed on behalf of the Municipal Council by an unauthorised person as also because it was obtained by practising fraud on the municipal Council. Several other grounds in support of the contention that the agreement containing the arbitration clause itself was null and void, were taken in the reply. 2. The trial court framed issues in the case, issue No. 1 of which was as to whether the agreement dated 4.5.92 and subsequent Corrigenda were illegal and not binding being against public interest and public policy. The revision petitioner-plaintiff moved an application for deletion of issue No. 1 mainly on the ground that no objection to the existence of an Arbitration agreement can be raised in answer to an application under Section 20 of the Arbitration Act and such an objection can be raised only under Section 33 of the Act. The trial court rejected the application holding that such an objection could be taken in answer to an application under Section 20 also as it is covered by Section 20(4) of the Act being a cause as to why the reference be not made to the Arbitrator Against this order, the revision petitioner has come up in revision.I have heard the learned counsel and have perused the record. It would be useful to reproduce the relevant provisions of the Arbitration Act for a proper analysis of the problem and correct interpretation of the provisions. It would be useful to reproduce the relevant provisions of the Arbitration Act for a proper analysis of the problem and correct interpretation of the provisions. "Section 20-Application to file in Court arbitration agreement- (1) Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject-matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court. (2) The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants. (3) On such application being made, the Court shall direct notice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the notice why the agreement should not be filed. (4) Where no sufficient cause is shown, the Court shall order the agreement to be filed and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. (5) Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable." "Section 33-Arbitration agreement or award to be contested by application-Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit. 3. 3. The learned counsel for the revision petitioner submitted that the Arbitration Act specifically provides for a remedy to challenge the existence or validity of the arbitration agreement by an application under Section 33 of the Act. According to the learned counsel this necessarily means that in no other way the existence or validity of an agreement can be challenged and therefore according to the learned counsel, in answer to an application under Section 20 of the Act invalidity or non-existence of the agreement cannot be claimed as a sufficient cause for disallowing a prayer for filing the arbitration agreement in Court. According to the learned counsel when there is no dispute about the execution of the arbitration agreement, the matter cannot be covered by Section 20. On the contrary, the learned counsel for the non-petitioner submitted that the words "where any persons have entered into an arbitration agreement" in Section 20(1) indicate that existence of a valid arbitration agreement is sine-qua-non for the maintenance of an application under Section 20 of the Act. It is contended that the challenge to the validity of the agreement shall therefore be relevant and entertainable under Section 20 of the Act. 4. The learned counsel for the Revision petitioners has mainly relied on the decision of the Supreme Court in U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. AIR 1996 SC 1373 for the proposition that objection as to the existence or validity of an arbitration agreement can only be raised by filing an application under Section 33 of the Arbitration Act and in no other manner. Emphasis was laid on the last sentence of paragraph 15 of the decision in which the Court has observed that the remedy under Section 33 is the only right Royal way for deciding the controversy. It was a case in which on an application under Section 33 of the Arbitration Act, the Court had decided that an arbitration agreement existed between the parties. In appeal the Supreme Court found that the arbitration agreement did not exist as there was no concluded contract between the parties. It was a case in which on an application under Section 33 of the Arbitration Act, the Court had decided that an arbitration agreement existed between the parties. In appeal the Supreme Court found that the arbitration agreement did not exist as there was no concluded contract between the parties. The ruling is clearly distinguishable on facts and is of no help in solving the dispute involved in the case in hand.In Bhagwan Das Atmasing v. Atmasing Jessasing, AIR 1945 Bombay, 494 a Division Bench has categorically held that Section 33 does not take away the right to set up as a defence the non-existence of an agreement when the agreement is propounded under Section 34 by the other side. That was a case where a defendant prayed for staying the suit against him under Section 34 of the Arbitration Act and in answer to that application the plaintiff set up a plea that there was no arbitration agreement in existence. 5. A Division Bench of Calcutta High Court in Panchanan Pal v. Nani Gopal Niyogi AIR 1955 NUC 1104 held that Section 33 merely provides for the making of an application by the party concerned for relief contemplated by that section. It has no application to a case where a defence is raised challenging the existence or validity of the arbitration agreement. It was also observed in this case that the Court may get rid of technicalities and treat a petition of objection as being in substance an application in terms of Section 33 of the Arbitration Act. 6. A Single Bench decision of Lahore High Court in Radha Kishan v. Bombay Company Ltd., AIR 1943 Lahore 295 held that application under Section 33 is not one for securing order that agreement to refer to arbitration be not filed. Such an application cannot be made under the Act. If a person does not want an agreement to be filed, he can keep quiet and oppose the application when one is made by his opposing party to have the agreement filed. 7. A Single Bench of the Patna High Court also in Saibalani Devi v. Dipti Bikash Bhaduri, AIR 1969 Patna, 322 held that there cannot be a reference for arbitration in regard to the disputes arising out of the partnership which is assailed on the ground that it was vitiated by fraud, misrepresentation and undue influence. 8. 7. A Single Bench of the Patna High Court also in Saibalani Devi v. Dipti Bikash Bhaduri, AIR 1969 Patna, 322 held that there cannot be a reference for arbitration in regard to the disputes arising out of the partnership which is assailed on the ground that it was vitiated by fraud, misrepresentation and undue influence. 8. In Wazir Chand Mahajan v. The Union of India, AIR 1967 SC 990 the Supreme Court in paragraph 7 of the judgment observed that in dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting find which has been executed before the institution of any suit. 9. In a Division Bench decision of the Allahabad High Court in Ram Alam Lal v. Dukhan and Ors. AIR 1950 Allahabad 427 a written statement in answer to an application for filing of award on the ground that the agreement to refer was fraudulent, null and void and the award was unenforceable was treated to be an objection under Section 33 of the Act. It was further observed that Section 33 does not prescribe the manner in which the challenge should come. The written statement serves the purpose of the objection challenging the validity of the award, 10. In Sushanta Kumar Nayak v. Dilip Kumar Mohanty and Others, 1988 (2) Arb. L.R. 277 a Single Bench of the Orissa High Court held that the Court will refuse an order for filing of agreement if the dispute arise out of a document which is assailed on the ground of fraud, misrepresentation or undue influence, or the arbitration clause is embodied in a document which contravenes provisions of law, or for any other sufficient cause. 11. The decisions referred to above no doubt lay down that in answer to an application under Section 20 of the Arbitration Act also the plea that no valid arbitration agreement existed between the parties can be raised but they do not lay down as to in what circumstances such a plea could be taken as sufficient cause for refusing to order filing of arbitration agreement in Court and referring the matter for arbitration. Can it be said that mere allegation of fraud, misrepresentation, undue influence etc. in respect of the arbitration agreement are sufficient to dislodge a claim for reference to arbitration? Can it be said that mere allegation of fraud, misrepresentation, undue influence etc. in respect of the arbitration agreement are sufficient to dislodge a claim for reference to arbitration? Is it not necessary to have some kind of proof of such infirmities in the agreement? Should it not be necessary that a prima-facie case of fraud, misrepresentation, undue influence etc. is found before refusal to act upon an agreement? 12. Fortunately, the decision of the Supreme Court in Abdul Kadir v. Madhav AIR 1962 SC 406 throws sufficient light on the question. It would be appropriate to quote the relevant excerpts from the decision. "(12) The contention on behalf of the appellant in this connection is that serious allegations of fraud have been made against him and therefore this is not a case against him and therefore this is not a case which should be referred to arbitration. Sub-section (4) of Section 20 lays down that where no sufficient cause is shown, the court shall order the agreement to be filed and make an order of reference to the arbitrator. It is therefore open to a court under this sub-section, where sufficient cause is shown not to order the agreement to be filed and not to make a reference to the arbitrator. The words of this sub-section leave a wide discretion in the court to consider whether an order for filing the agreement should be made and a reference made accordingly. It is neither necessary nor desirable to lay down in general terms what would be sufficient cause which would entitle a court to refuse to order the agreement to be filed and thus refuse to make an order of reference. The court will have to decide on the facts of each case whether sufficient cause has been made out for not ordering the agreement to be filed and not making the order of reference." 17. There is no doubt that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open court, that would be a sufficient cause for the court not to order an arbitration agreement to be filed and not to make the reference. There is no doubt that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open court, that would be a sufficient cause for the court not to order an arbitration agreement to be filed and not to make the reference. But it is not every allegation imputing some kind of dishonesty, particular in matters of accounts, which would be enough to dispose a court to take the matter out of the forum which the parties themselves have chosen........" "We are clearly of opinion that merely because some allegations have been made that accounts are not correct or that certain items are exaggerated and so on that is not enough to induce the court to refuse to make a reference to arbitration. It is only in cases of allegations of fraud of a serious nature that the court will refuse as decided In Russell's case (1880) 14 Ch D 471 to order on arbitration agreement to be filed and will not make a reference............" "It is only when serious allegations of fraud are made which it is desirable should be tried in open court that a court would be justified in refusing to order the arbitration agreement to be filed and in refusing to make a reference." 13. It can therefore safely be concluded that mere allegation that the arbitration agreement was vitiated by fraud, misrepresentation, undue influence etc. is not enough to throw away an application under Section 20 of the Arbitration Act. The Court has to decide in each and every case whether in the facts and circumstances of that case such allegation could be taken as sufficient cause within the meaning of Sub-section (4) of Section 20 of the Arbitration Act for refusing to order filing of arbitration agreement and referring the dispute for arbitration. 14. When the case in hand is viewed in the light of aforesaid discussion, it is clear that if at all issues or points for determination were to be framed, they had to be framed within the scope of the enquiry under Section 20(3) and Section 20(4) of the Arbitration Act. What was to be enquired into was whether sufficient cause was shown for refusing to order filing of the arbitration agreement. What was to be enquired into was whether sufficient cause was shown for refusing to order filing of the arbitration agreement. No doubt, invalidity of the arbitration agreement on account of fraud, misrepresentation, undue influence etc. could be pleaded as a cause under the provision and the Court could enquire into the sufficiency of the cause shown for refusal to order filing of the arbitration agreement. But the Court could not have put the truth of the allegations of fraud, misrepresentation, undue influence etc. in issue so that the scope of enquiry is enlarged to the extent of converting the proceedings into a suit for declaring the agreement to be null, void and ineffective. All that Section 20(4) of the Arbitration Act provides is an opportunity for opposing reference of a dispute to arbitration. It does not provide a remedy for getting finally rid of an agreement on the ground that it was obtained by practicing fraud, misrepresentation, undue influence etc. or that it was opposed to public policy. The only point expected to be decided by the Court in such proceedings is as to whether the Court would ask the agreement to be filed in Court and refer the dispute to arbitration or it would leave it out to be raised and decided in a regular civil suit. There is no scope for framing an issue on the truth of the allegation of fruad, misrepresentation, undue influence etc. or of the allegation that the agreement was opposed to public interest and public policy. 15. The observations of the Supreme Court in Orient Transport Company v. M/s Jai Bharat Credit & Investment Company Ltd. AIR 1987 SC 2289 approving the decision of the Division Bench of the Calcutta High Court in State of Bombay v. Adamjee Hazi Dawood and Company AIR 1951 Calcutta 147 throws light on the subject. In that decision the Supreme Court expressed the view that Section 32 of the Act does not contemplate the case of a suit challenging the validity of a contract merely because it contains an arbitration clause. If the intentions of the Legislature were that all documents containing an arbitration clause should come within the purview of Sections 32 and 33, the legislature would have said so in appropriate words. If the intentions of the Legislature were that all documents containing an arbitration clause should come within the purview of Sections 32 and 33, the legislature would have said so in appropriate words. These sections have a very limited application confined to cases where the existence or validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged. Every person, it has to be borne in mind, has a right to bring a suit which is of a civil nature and the Court has jurisdiction to try all suits of civil nature under Section 9 of the Civil Procedure Code. That right can only be taken away by express terms or by necessary implication. Section 32 does not have that effect. Sections 32 and 33 of the Act on the true construction do not purport to deal with suits for declaration that there was never any contract or that contract is void. 16. it appears that the Court below did not intend to go into the truth of the allegation as to validity of the agreement. It has clearly observed that it was going to examine only as to whether there was sufficient cause for refusing to order filing of the arbitration agreement. However, the issue No. 1 framed by it goes contrary to its intention. The issue translated in English would be "whether the agreement dated 4.5.92 and subsequent corrigenda are illegal being opposed to public interest and public policy and are not binding?" The issue is clearly beyond the scope of Section 20 of the Arbitration Act. 17. This revision petition is therefore allowed. The issue No. 1 framed by the Court below is deleted and substituted by the following issue No. 1 - " D;k izfroknhx.k }kjk /kkjk 20 ( 3 ) ek/;Lfke vf/kfu;e ds v/khu fn;s x;s dkj.k crkvks lwpuk i= ds mRrj esa crk;s x;s dkj.k vuqcU/k dks U;k;ky; esa izLrqr djus dk vkns'k u fn;s tkus ds fy, i;kZIr gS\ " 18. Let the record be sent back immediately.Revision Allowed. *******