JUDGMENT R.S. Ramanathan, J. The respondent/plaintiff filed the suit for declaration that the resolution altering the eligibility criteria for ordinary members in the Council Meeting which was held on 06th November, 2012 is ultra vires, void and ab initio, and for permanent injunction restraining the applicant/defendant from giving effect to the resolution and altering the status of the plaintiff from that of an ordinary member. 2. The case of the respondent/plaintiff is that the applicant/defendant is a company registered under section 25 of the Companies Act, 1956 and the main objective of the applicant/defendant company is to prepare and encourage motor sports among amateurs/ professionals and to issue competition licence for various motor sports throughout India. The respondent/plaintiff is an ordinary member of the applicant/defendant federation and as per the bye-laws and Articles of Association of the applicant/defendant federation, founder members and ordinary members alone have right to vote and/or speak at any general meeting of the company (vide clause 9 of the Articles of Association). As per Clause 5 of the Articles of Association, any Club or Association or a Company devoted to or connected with motor sports in India and recognised as such by the Council in accordance with the rules and regulations prescribed by the Council from time to time shall be entitled to become an ordinary member of the company. The respondent/plaintiff is admitted as an affiliated member of the applicant/defendant federation as early as 1988 and became ordinary member of the applicant federation in the year 1991-1992 and the respondent/plaintiff is not a non-profit making body. While so, on 6.11.2012, a Council meeting of the federation, namely, applicant/defendant was conducted and in that meeting, Resolution No.9 was passed by changing the qualification of an ordinary member by prescribing that the ordinary member should be a non-profit making body with no share of profit or income being shared by his members and new ordinary members criteria was prescribed stating that the ordinary members ought to be a statutory body and no individual member shall be admitted as an ordinary member. On 14.11.2012, a copy of the council meeting resolution was circulated which requires the existing ordinary members to convert themselves into a non-profit making body with no share of profit or income being shared by members and the same is challenged in this suit by the respondent/plaintiff. 3. On 14.11.2012, a copy of the council meeting resolution was circulated which requires the existing ordinary members to convert themselves into a non-profit making body with no share of profit or income being shared by members and the same is challenged in this suit by the respondent/plaintiff. 3. The applicant/defendant filed the above Application under Section 8 of the Arbitration and Conciliation Act, 1996 stating that the parties had agreed that disputes between them can be resolved by arbitration and it is also evident by the filing of the annual return form dated 13.12.2011 by the respondent/plaintiff wherein it is stated as follows:- "I hereby certify that the above information are correct and true. I also affirm that we shall follow the arbitration process of the FMSCI for resolving disputes, in accordance with the Indian Arbitration and Conciliation Act." Therefore, the suit has to be dismissed and they shall be directed to invoke the arbitration clause. 4. The respondent/plaintiff filed a counter affidavit stating that the Application is not maintainable and there is no arbitration agreement between the parties and the Articles of Association of the applicant/defendant does not contain any arbitration clause and any reference in the annual return will not have the effect of accepting to refer any dispute to arbitration and the clause mentioned in the annual return is not an arbitration clause. It is also contended that there is no valid arbitration agreement as it does not contain signature of the applicant/defendant. 5. Mr. P.S. Raman, learned Senior Counsel appearing for the applicant/defendant submitted that as per the annual return filed by the respondent/plaintiff, the respondent/plaintiff agreed to follow the arbitration process of FMSCI for resolving disputes in accordance with the Arbitration and Conciliation Act, 1996 and the same was signed by the respondent/plaintiff and as per Section 7(4) of the Arbitration and Conciliation Act, 1996, even by exchange of letters and statements of claim, an arbitration agreement can be brought into existence and in this case, the respondent/ plaintiff filed the annual return agreeing to abide by the arbitration process and therefore, it cannot be contended by the respondent/plaintiff that there is no arbitration clause or the parties never agreed for referring any dispute to arbitration. He therefore submitted that even in the absence of arbitration clause in the Articles of Association, having regard to the admission of the respondent/plaintiff to follow the arbitration process in the annual return filed by it, a valid arbitration agreement has come into existence between the parties and under Section 8 of the Act, the case has to be referred to arbitration. He also relied on the judgment of the Hon'ble Supreme Court reported in 2005 (4) CTC 297 in the matter of Shin-Etsu Chemical Co.Ltd. v. Aksh Optifibre Ltd and the judgment of this Court reported in 2008 (4) CTC 1 in the matter of Kotak Mahindra Bank Ltd vs. Sundaram Brake Lining Ltd and 2 others. The learned Senior Counsel submitted that though the Hon'ble Supreme Court dealt with Section 45 of the Arbitration and Conciliation Act, 1996 in the judgment reported in 2005 (4) CTC 297, the principles can be applied to the facts of the case and as per the judgment of this Hon'ble Court reported in 2008 (4) CTC 1 , there is no other option except to refer the dispute to arbitration, having regard to the provision of Section 8 of the Arbitration and Conciliation Act, 1996 and also having regard to the reference to arbitration in the annual return filed by the respondent/plaintiff. He also submitted that by accepting to follow the arbitration clause of FMSCI for resolving the disputes, the arbitration agreement can be inferred and the parties are bound by the arbitration clause and therefore, the suit has to be dismissed. 6. On the other hand, Mr. S.R. Rajagopal, learned Counsel appearing for the respondent/ plaintiff relying upon the judgments reported in (2011) 14 Supreme Court Cases 66 in the matter of SMS Tea Estates Private Limited Vs. Chandmari Tea Company Private Limited, and (2009) 7 Supreme Court Cases 696 in the matter of M.R. Engineers and Contractors Private Limited Vs. 6. On the other hand, Mr. S.R. Rajagopal, learned Counsel appearing for the respondent/ plaintiff relying upon the judgments reported in (2011) 14 Supreme Court Cases 66 in the matter of SMS Tea Estates Private Limited Vs. Chandmari Tea Company Private Limited, and (2009) 7 Supreme Court Cases 696 in the matter of M.R. Engineers and Contractors Private Limited Vs. Som Datt Builders Limited submitted that there is no arbitration agreement between the parties and the reference to arbitration process in the annual return filed by the respondent/plaintiff cannot be equated to any reference to arbitration agreement and in the absence of any clause in the Articles of Association agreeing to refer the matter to arbitration, it is not open to the applicant/defendant to invoke Section 8 of the Arbitration and Conciliation Act, 1996 for referring the matter to the arbitration. He also submitted that the scope of dispute in the suit cannot even contemplate any reference to arbitration and the main dispute in the suit is whether the Articles of Association can be changed without following the procedures of the Companies Act and the absence of any provision in the Articles of Association for referring any dispute among the members of the company to arbitration, it is always open to the respondent/plaintiff to invoke the ordinary civil jurisdiction of this Court to seek redress. He also submitted that as per Section 7 of the Arbitration and Conciliation Act, 1996, an "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 and having regard to the wordings in the annual return, it cannot be stated that the arbitration agreement has come into existence between the parties or the parties agreed to refer the dispute between them to arbitration. He, therefore, submitted that there is no arbitration agreement between the parties and therefore, the Application under Section 8 of the Arbitration and Conciliation Act, 1996 is not maintainable and is liable to be dismissed. 7. Having regard to the submissions of the learned counsel appearing for the parties, we will have to see whether an arbitration agreement has come into existence by reason of the wordings in the annual return filed by the respondent/plaintiff. 8. 7. Having regard to the submissions of the learned counsel appearing for the parties, we will have to see whether an arbitration agreement has come into existence by reason of the wordings in the annual return filed by the respondent/plaintiff. 8. To decide the issue, we have to appreciate the scope of Sections 7 and 8 of the Arbitration and Conciliation Act, 1996. (a) In the judgment reported in (2011) 5 Supreme Court Cases 532 in the matter of Boozallen & Hamilton Inc. v. SBI Home Finance Ltd and others, it is held in Paragraph No.19 as follows:- "(i) whether there is an arbitration agreement among the parties; (ii) whether all the parties to the suit are parties to the arbitration agreement; (iii) whether the disputes which are the subject-matter of the suit fall within the scope of arbitration agreement; (iv) whether the defendant had applied under Section 8 of the Act before submitting his first statement on the substance of the dispute; and (v) whether the reliefs sought in the suit are those that can be adjudicated and granted in an arbitration." (b) In the judgment reported in (2009) 10 Supreme Court Cases 103 in the matter of Branch Manager, Magma Leasing and Finance Limited and another Vs. Potluri Madhavilata and another, it is held in Paragraph No.17 as follows:- "An analysis of Section 8 would show that for its applicability, the following conditions must be satisfied: (a) that there exists an arbitration agreement; (b) that action has been brought to the Court by one party to the arbitration agreement against the other party; (c) that the subject-matter of the suit is same as the subject matter of the arbitration agreement; (d) that the other party before he submits his first statement of the substance of the dispute, moves the court for referring the parties to arbitration; and (e) that along with the application the other party tenders the original arbitration agreement or duly certified copy thereof." 9. Therefore, we will have to find out whether there exists an arbitration agreement for the parties to invoke the same. Therefore, we will have to find out whether there exists an arbitration agreement for the parties to invoke the same. As stated supra, it is the contention of the learned Senior Counsel that as per the annual return filed by the respondent/plaintiff, there is a reference to arbitration and therefore, the parties have agreed to refer any dispute to arbitration and the respondent/plaintiff, having subscribed to that clause by filing the annual return, is bound by the arbitration clause and therefore, the suit has to be dismissed and the disputes have to be referred to arbitration. He also relied upon the judgment of the Hon'ble Supreme Court as well as the judgment of this High Court referred to above. Therefore, we will have to find out whether any arbitration agreement has come into existence by reason of the clause in the annual return. 10. Admittedly, there is no arbitration clause in the Articles of Association of the applicant/defendant federation. Articles of Association is a contract between the members of the company and they are bound by the terms of the Articles of Association. When there is no reference to arbitration in the Articles of Association of the applicant company, can such arbitration agreement be presumed having regard to the wordings in the annual return is a question. 11. Under Section 7(3) of the Arbitration and Conciliation Act, 1996, arbitration agreement shall be in writing and if it is contained in a document signed by the parties, or by exchange of letters, telegrams, or other means of telecommunication which provide a record of the agreement or by exchange of statement of claim and defence in which the existence of agreement is alleged by one party and not denied by the other, the same can be brought into existence. 12. A reading of the relevant clause in the annual return cannot lead to the conclusion that the parties agreed to refer any dispute to arbitration. It is only stated that the party shall follow the arbitration process of FMSCI for resolving disputes in accordance with the Arbitration and Conciliation Act, 1996. Therefore, at the most, it can be stated that the parties agreed for arbitration if any such clause is available in the Articles of Association of FMSCI. It is only stated that the party shall follow the arbitration process of FMSCI for resolving disputes in accordance with the Arbitration and Conciliation Act, 1996. Therefore, at the most, it can be stated that the parties agreed for arbitration if any such clause is available in the Articles of Association of FMSCI. According to me, the sentence "we shall follow the arbitration process of FMSCI for resolving disputes" only mean that the plaintiff agreed to follow arbitration process if there is any arbitration agreement in FSCI. In other words, if there is an arbitration clause in the Articles of Association of FMSCI or in any other contract between FMSCI and its members, then the parties agreed to follow the arbitration process. Therefore, in the absence of any arbitration clause in the Articles of Association or in any other agreement between FMSCI and its members, merely because, the parties agreed to follow the arbitration process of FMSCI for resolving disputes, one cannot come to the conclusion that the parties agreed to refer the dispute to arbitration. 13. In this connection, it is pertinent to note the law laid down by the Hon'ble Supreme Court in the judgment reported in (2009) 7 Supreme Court Cases 696 in the matter of M.R. Engineers and Contractors Private Limited Vs. Som Datt Builders Limited, which is as follows:- "14. The wording of Section 7(5) of the Act makes it clear that a mere reference to a document would not have the effect of making an arbitration clause from that document, a part of the contract. The reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause contained in the document, into the contract. If the legislative intent was to import an arbitration clause from another document, merely on reference to such document in the contract, sub-section (5) would not contain the significant later part which reads: "and the reference is such as to make that arbitration clause part of the contract", but would have stopped with the first part which reads: "7. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing..." 15. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing..." 15. Section 7(5) therefore requires a conscious acceptance of the arbitration clause from another document, by the parties, as a part of their contract, before such arbitration clause could be read as a part of the contract between the parties. But the Act does not contain any indication or guidelines as to the conditions to be fulfilled before a reference to a document in a contract can be construed as a reference incorporating an arbitration clause contained in such document into the contract. In the absence of such statutory guidelines, the annual rules of construction of contracts will have to be followed. 16. There is a difference between reference to another document in a contract and incorporation of another document in a contract, by reference. In the first case, the parties intend to adopt only specific portions or part of the referred document for the purposes of the contract. In the second case, the parties intend to incorporate the referred document in entirety, into the contact. Therefore, when there is a reference to a document in a contract, the court has to consider whether the reference to the document is with the intention of incorporating the contents of that document in entirely into the contract, or with the intention of adopting or borrowing specific portions of the said document for application to the contract." 14. Therefore, unless the parties intended to incorporate arbitration clause in any of the documents of the applicant/defendant company, by mere reference that the party shall follow the arbitration process will not lead to the conclusion that the parties agreed for arbitration. In the judgment reported in (2011) 1 Supreme Court Cases 320 in the matter of S.N. Prasad, Hiteck Industries (Bihar) Limited Vs. Monnet Finance Limited and others, it is also held that there can be reference to arbitration only if there is an arbitration agreement between the parties. In the judgment reported in (2011) 1 Supreme Court Cases 320 in the matter of S.N. Prasad, Hiteck Industries (Bihar) Limited Vs. Monnet Finance Limited and others, it is also held that there can be reference to arbitration only if there is an arbitration agreement between the parties. Therefore, when there is a doubt whether there is any arbitration agreement and the parties agreed for referring the dispute to arbitration and when admittedly the Articles of association does not contain any arbitration clause and no other document was produced by the applicant/defendant to the effect that the parties have agreed to refer to any dispute, the arbitration, in my opinion, it cannot be stated that the parties have agreed for arbitration and there was an arbitration agreement between the parties. Further, as per the judgment reported in (2011) 5 Supreme Court Cases 532 supra, even assuming that there is an arbitration agreement between the parties, Court has to decide whether the relief sought in the suit or that can be adjudicated and granted in an arbitration. Further, in the same judgment, the Hon'ble Supreme Court also held that it has to be decided whether the subject matter of the suit is arbitrable; that is capable of being adjudicated by a private forum, and whether the High Court ought to have referred the parties to the suit to arbitration under Section 8 of the Act. While discussing the term, "arbitrability", the Hon'ble Supreme Court in the aforesaid judgment held as follows:- "34. The term "arbitrability" has different meanings in different contexts. The three facets of arbitrability, relating to the jurisdiction of the Arbitral Tribunal, are as under: (i) Whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the Arbitral Tribunal) or whether they would exclusively fall within the domain of public fora (courts). (ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the "excepted matters" excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? (ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the "excepted matters" excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the Arbitral Tribunal, or whether they do not arise out of the statement of the claim and the counterclaim filed before the Arbitral Tribunal. A dispute, even if it is capable of being decided by arbitration and falling within the scope of arbitration agreement, will not be "arbitrable" if it is not enumerated in the joint list of disputes, does not form part of the disputes raised in the pleadings before the Arbitral Tribunal. 35. The Arbitral Tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of the Arbitral Tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings are reserved by the legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public fora (courts and tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is inarbitrable, the court where a suit is pending, will refuse to refer the parties to arbitration, under Section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes." 15. According to me, the issue involved in this case is whether the applicant/defendant can amend the criteria regarding qualification of a member and it cannot be decided in arbitration and it has to be decided in a Court. According to me, the issue involved in this case is whether the applicant/defendant can amend the criteria regarding qualification of a member and it cannot be decided in arbitration and it has to be decided in a Court. Therefore, having regard to the fact that there is no clear proof of existence of an arbitration agreement between the parties and the clause in the annual return will not have the effect of agreeing to refer any dispute to arbitration in the absence of any clause for arbitration in the Articles of Association and the issue involved in this suit is not an arbitral issue, in my opinion, the Application to refer the dispute to arbitration cannot be sustained. 16. In the result, the Application is dismissed.