Order This is an application filed by the defendant no.1 under Section 8 of the Arbitration and Conciliation Act, 1996 for stay of the suit and referring the disputes between the plaintiff and the defendant no.1 to arbitration. The applicant/defendant no.1 is a manufacturer of heavy earth moving equipment and particularly dumpers. In or about 2008, the plaintiff purchased 14 dumpers from the defendant no.1. The plaintiff acquired the said assets under a financial arrangement with the defendant nos.2 and 3. The plaintiff alleged that the goods supplied by the defendant no.1 were defective and accordingly there is a failure of consideration. The plaintiff has asked for return of consideration as well as loss and damage suffered by reason of supply of such defective dumpers. The cause of action against the defendant no.1 was supply of defective materials and the loss and damage suffered by the plaintiff by reason of failure of the defendant no.1 to rectify the defects and the consequential loss and damage suffered by reason of failure to the defendant no.1 to replace the said dumpers or to repair the defects. The causes of action against the defendant nos. 2 and 3 are that the said defendant nos. 2 and 3 have initiated recovery proceeding against the plaintiff for its failure to repay the debts under several loan agreements. The plaintiff says that the plaintiff was unable to repay the debts by reasons of the defective dumpers supplied by the defendant no.1 and under such circumstances, it is the obligation of the plaintiff to repay such amounts to the defendant nos. 2 and 3. It is alleged in the plaint that the dumpers were incapable of repairing and the plaintiff has pleaded an oral agreement with the defendant no.1 in which it is alleged to have been proposed to the plaintiff that they could make the said dumpers roadworthy if various major components of the dumpers were replaced. The demand for payment for replacement of the essential and major components of the dumpers is contrary to the agreement and the warranty clause in the purchase order. The plaintiff was already cashestrapped by that time and was unable to make payment to the defendant no.1 for replacing the essential components of the dumpers. It is alleged that as a consequence of not being able to pay the amounts due and payable to the defendant nos. The plaintiff was already cashestrapped by that time and was unable to make payment to the defendant no.1 for replacing the essential components of the dumpers. It is alleged that as a consequence of not being able to pay the amounts due and payable to the defendant nos. 2 and 3, the said defendants under the hypothecation agreement had seized the equipments from the workshop and/or factory of the defendant no.1. In absence of these dumpers, the plaintiff was unable to perform the subsisting contract with the SECL and consequently, huge penalties were imposed upon the plaintiff by the SECL and the said contract was also terminated and a bank guarantee furnished by the plaintiff in connection therewith for a value of Rs.2.5 crores has been invoked and bills in excess of Rs.4.5 crores have remained unpaid. The defendant no.2 had instituted recovery proceeding against the plaintiff before the Debt Recovery Tribunal. The defendant no.3 has demanded payment of the outstanding debts of Rs.34.14 lakhs against the loan-cum-hypothecation agreement entered into between the plaintiff and the said defendant. A perusal of the plaint would show that two separate and distinct causes of action have been pleaded in the plaint. The claim against the defendant no.1 is inter alia, mentioned in paragraph 24 to paragraph 27 of the plaint. The causes of action against the defendant nos. 2 and 3 are partly referable to paragraphs 27 and 28. Mr. Jishnu Chowdhury, the learned Counsel appearing on behalf of the petitioner, has submitted that the Court in deciding the application under Section 8 of the Arbitration and Conciliation Act, 1996 cannot bifurcate the claims and split the cause of action. The Court is required to take into consideration the averments made in the plaint as true and correct and if the subject matter of the suit is not forming the subject matter of the arbitration agreement, then the Court has no jurisdiction to refer the parties to arbitration. Mr. Chowdhury has referred to the decision of the Supreme Court in the case of Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya & Anr. reported in (2003) 5 Supreme Court Cases 531 and submitted that it has been conclusively and authoritatively held that the language used in Section 8 leaves no manner of any doubt that there is no provision in the Act for partly referring the dispute to arbitration. reported in (2003) 5 Supreme Court Cases 531 and submitted that it has been conclusively and authoritatively held that the language used in Section 8 leaves no manner of any doubt that there is no provision in the Act for partly referring the dispute to arbitration. The learned Counsel has placed reliance upon paragraph nos. 15, 16 and 17 of the said decision which reads as:- “15. The relevant language used in Section 8 is: “in a matter which is the subject of an arbitration agreement”. The court is required to refer the parties to arbitration. Therefore, the suit should be in respect of “a matter” which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced – “as to a matter” which lies outside the arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no question of application of Section 8. The words “a matter” indicate that the entire subject-matter of the suit should be subject to arbitration agreement. 16. The next question which requires consideration is – even if there is no provision for partly referring the dispute to arbitration, whether such a course is possible under Section 8 of the Act. In our view, it would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action, that is to say, the subject-matter of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and other is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject-matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language, it follows that bifurcation of the subject-matter of an action brought before a judicial authority is not allowed. 17. Secondly, such bifurcation of suit in two parts, one to be decided by the Arbitral Tribunal and the other to be decided by the civil court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. 17. Secondly, such bifurcation of suit in two parts, one to be decided by the Arbitral Tribunal and the other to be decided by the civil court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parties and on occasions there is possibility of conflicting judgments and orders by two different forums.” Mr. Chowdury has also referred to the decisions in (2011) 2 Supreme Court Cases 94 (Safiya Bee vs. Mohd. Vajahath Hussain Alias Fasi), (2004) 4 Supreme Court Cases 539 (P. Anand Gajapathi Raju & Ors. vs. P.V.G. Raju (Dead) & Anr.) and 2006 SCC OnLine Cal 170 (Maheswari Brothers Ltd. vs. Airports Authority of India Ltd. & Anr.) and submitted that at the stage of deciding an application under Section 8 of the Arbitration and Conciliation Act, the Court cannot go into the merits of the matter. Much emphasis has been made to the observations made by the Supreme Court in the case of P. Anand Gajapathi Raju & Ors. (supra) in para 5 to submit that since the arbitral Tribunal would have no jurisdiction to decide the entire claim made in the suit, the dispute of the suit cannot be referred to arbitration. Having regard to the law laid down by the Hon’ble Supreme Court and the language used in Section 8 of the Act, there cannot be any doubt that if the subject matter of the suit is not covered by the arbitration clause, the parties cannot be referred to arbitration. In considering a plea of the like nature the Court is required to take into consideration the statement of object and reasons for enacting the Arbitration and Conciliation Act, 1996. With regard to the domestic arbitration the legislature in Section 5 has clearly ousted the jurisdiction of all Courts in matters governed by the said part and the intervention is limited only to the extent provided in the said part. The main emphasis of the said Act is to uphold the arbitration and not to negate it and to minimise the role of the Court. The main emphasis of the said Act is to uphold the arbitration and not to negate it and to minimise the role of the Court. If it appears that there are two separate and distinct causes of action and one of the causes of action as pleaded in the plaint forms the subject matter of an arbitration agreement, then having regard to the object of the said Act and, pre-dominance and eminence of the agreement which the parties have entered into with their eyes wide open the parties cannot be allowed to resile from the said agreement and to institute civil suit on a specious plea that the other cause of action which forms the subject matter of the suit is not the subject matter of a arbitration agreement otherwise such an interpretation would render the provisions of the Arbitration and Conciliation Act, 1996 nugatory. In the cases cited before me it could be seen that the issues were overlapping and could not have been decided by the Arbitrator. Since the Arbitrator derives its jurisdiction from the agreement and not dehorse the agreement and does not have a plenary power like a Civil Court, the purpose and object of the suit is to get away with from the regards of the two significant enactments namely, the provisions of the Arbitration and Conciliation Act, 1996 and the Recovery of Debts Due to Banks and Financial Institution Act, 1993. However, at this stage I am not concerned with the provisions of the Recovery of Debts Due to Banks and Financial Institution Act. A reading of the plaint gives a clear impression and indication that the cause of action against the defendant no.1 is distinct, separate and several. A party by a clever drafting cannot artificially create a jurisdiction for this Court disregarding the agreement containing an arbitration clause. A party cannot be allowed to bring distinct cause of action and pleaded all the causes of action in the suit against several parties with a view to get away with the arbitration agreement. A reading of the plaint would show that the reliefs claimed are principally against the defendant no.1 and disclose a separate and independent cause of action against the defendant no.1. A learned Single Judge of this Court in Niranjan Lal Todi & Ant. Vs. Nandlal Todi & Ors. A reading of the plaint would show that the reliefs claimed are principally against the defendant no.1 and disclose a separate and independent cause of action against the defendant no.1. A learned Single Judge of this Court in Niranjan Lal Todi & Ant. Vs. Nandlal Todi & Ors. reported at 2011 (1) CHN (Cal) 762 held that Sukanya Holdings is not an authority for the proposition that if some parties have been impleaded in an action with a view to avoiding the enforcement of the arbitration agreement, the judicial authority in seisin of the action has to reject the application under Section 8 of the 1996 Act merely on such ground. Under such circumstances, I am of the view, that the suit was filed against the defendant no.1 with a view to circumvent the arbitration clause in the agreement and as such, the suit filed against the defendant no.1 in this Court on the face of the arbitration clause existing in the concur document, is not clearly maintainable. The suit against the defendant no.1 accordingly stands dismissed. The parties shall be free to refer the disputes to arbitration in accordance with the arbitration clause in the agreement.