Judgment : ( Shree Chandrashekhar, J.) Aggrieved by the decision dated 12 th September 2024 passed in Civil Original Miscellaneous Case/NCV No.35 of 2022 whereby the application filed under section 8 (1) read with section 5 of the Arbitration and Conciliation Act, 1996 (in short, A & C Act) and under Order VII Rule 11 of the Code of Civil Procedure has been dismissed, M/s S.P.M.L. Infra Limited has filed this Civil Miscellaneous Appeal. 2. Briefly stated, the Government of Rajasthan issued a Notice Inviting Tender through the Public Health Engineering Department on 15 th February 2012 bearing number 07/11-12 for the Balotra Pipeline Project SPR-2 Project, Santra Bhakra Head. The appellant- company was awarded the tender and the work order was issued in its favour on 14 th September 2012. Pursuant thereto, Agreement No.07/12-13 was signed on 18 th September 2012 between the appellant-company and the Executive Engineer, Public Health Engineering Department, Project Division at Balotra. Later on, the contract value of Rs.187.01 crores was reduced to Rs. 165.10 crores by mutual consent. This is pleaded by the appellant-company that it had completed work to the extent of Rs.111.26 crores and it entered into a Sub-letting contract on 19 th April 2017 with M/s S.N.S.S. Construction-respondent no.1 for the remainder of the work and that included (a) balance pipeline supply (MS/BWS/DI) (b) balance laying of pipes available at site (c) balance hydro-testing (d) fixing of butterfly valves, sluice valves and air valves available at site (e) construction of flow control station (f) pipeline crossing (g) construction of valve chambers (h) electro-mechanical works including supply and installation and (i) testing and commissioning as per specification. This is also the case pleaded by the appellant-company that an amendment to the Sub-letting contract was executed on 11 th October 2017 with the respondent no.1 and clause 26 of the Sub-letting contract was deleted with mutual consent of the parties. 3. Clause 26 of the Sub-letting contract had provided as under:- “It is further agreed between the parties that in case any of the dispute under the Sub-Contract touches or concerns the issues under the Contract, then such disputes shall be decided as per the Dispute Resolution Procedure under the Contract and the decision on such disputes under the Contract shall be applicable to both.” 4. On 13 th April 2018, a notice for termination was issued to the respondent no.1 as per clause 22 of the Sub-letting contract. 5. About four years thereafter, a notice dated 05 th January 2022 was served upon the appellant-company by the respondent no.1 on 13 th January 2022 intimating the appellant-company about pre- institution mediation on 18 th January 2022. The pre-institution mediation, however, remained a non-starter and Civil Misc. Case NCV No.35/2022 titled “M/S. S.N.C.C. Construction v. M/S. S.M.P.L Infra Ltd. & Ors.” came to be instituted by the respondent no.1 in the Court at Jodhpur seeking a decree for Rs.6,83,69,682/-. Additionally, a decree for Rs.3,97,49,804/- with interest at the rate of 18% is also claimed as principal outstanding amount. 6. In the pending suit before the Commercial Court, the appellant-company took the following stand in the application filed under section 8(1) read with section 5 of A & C Act:- “ 13. The applicant/defendant states that the Case No.35/22 is not maintainable either in law or in facts. The said commercial suit has been filed in suppression of material and relevant facts and/or by distorting the truth. The respondent plaintiff is deliberately misleading the Learned Court. The entire suit is misconceived and is an abuse of process. Any application, if any, filed in connection thereto and/or in support thereof are also not maintainable as the same suffer from the same vices as stated above. The applicant/defendant states that any and all applications filed by the respondent/plaintiff in the commercial suit are misleading and filed with malafide intentions for the purposes of making illegal gains at the cost of the applicant defendant. 14. The respondent/plaintiff, as it appears from a plain reading of the plaint, while relying on the agreement has deliberately suppressed the Arbitration clause as agreed upon by the parties to the agreement dated April 19, 2017. The respondent/plaintiff relies upon the agreement dated April 19, 2017 but at the same time deliberately refuses to act in terms thereof. 15. As stated earlier, the intention of the parties to the agreement to adjudicate / settle any and all disputes arising out of the agreement dated April 19,2017 by way of arbitration at Delhi, is a subsisting agreement between parties standing on its own independent legs. 16. 15. As stated earlier, the intention of the parties to the agreement to adjudicate / settle any and all disputes arising out of the agreement dated April 19,2017 by way of arbitration at Delhi, is a subsisting agreement between parties standing on its own independent legs. 16. In terms of the arbitration clause enshrined within the agreement dated April 19, 2017, the Arbitration as agreed upon by the parties shall be held in Delhi as per the provisions of the Arbitration and Conciliation Act, 1996. In view of Clause 24 of the said agreement, the respondent/plaintiff has deliberately tried to harass the applicant/defendant by instituting the instant matter before this Learned Court. The applicant states that in the event this Learned Court entertains the instant suit, the Learned Court shall be acquiring jurisdiction and interfering in a dispute which has been agreed upon by the plaintiff to being settled by way of Arbitration at Delhi. 17. In view of the fact that the arbitration clause has not been deleted and/or modified and/or rescinded and/or removed the arbitration agreement remains to this date a valid subsisting agreement between the parties standing on its own independent legs. 18. It is not out of place to mention that the jurisdiction conferred and agreed to by and between the parties is to be construed harmoniously and cannot be read into as self-contrary or self-destructive. The jurisdiction agreed upon is merely in aide of the construction which furthers the scope of the alternate dispute redress mechanism agreed upon by the parties in the event of disputes. In as much as the disputes which have arisen between the parties can be decided upon by an arbitrator, this Learned Court ought not otherwise acquire jurisdiction, interfere and/or even try the matter on merits as yet. 19. The underlying scope of the agreement from the very date of its execution has been that of the plaintiff completing its obligations under the agreement first and thereafter the defendant/applicant proceeding with its share of obligations. Under the agreement the plaintiff has specified and particular duties and obligations which the plaintiff for reasons best known to itself did not fulfill. In fact the termination of the agreement was on account of the plaintiff not complying its share of obligations. 20. Under the agreement the plaintiff has specified and particular duties and obligations which the plaintiff for reasons best known to itself did not fulfill. In fact the termination of the agreement was on account of the plaintiff not complying its share of obligations. 20. In any event the applicant herein has not submitted to the jurisdiction of this Learned Court and is only bringing to the knowledge of this Learned Court the existence of a legal and binding Arbitration agreement by and between the parties, surreptitiously suppressed by the plaintiff/respondent by not coming clean and/or even succinctly aiming at the terms and conditions of the agreement. Albeit the plaintiff is relying upon the agreement and cannot deny the subsisting arbitration agreement.” 7. Albeit the plaintiff is relying upon the agreement and cannot deny the subsisting arbitration agreement.” 7. However, the aforementioned application seeking reference to arbitration was dismissed vide the judgment dated 12 th September 2024 wherein the Commercial Court held as under :- ^^mHk; i{kdkjku ds }kjk izLrqr rdkZsa ij v/;;u o euu fd;k x;k rFkk mHk; i{kdkjku }kjk izLrqr U;kf;d fofu.kZ;ksa dk llEeku v/;;u o euu dj ekxZn'kZu izkIr fd;k x;kA ,oa i=koyh dk voyksdu fd;k x;kA mHk; i{kdkjku }kjk izLrqr rdkZsa ds ?e esa gh vfHkys[k ij miyC/k lkexzh dk voyksdu fd;k tkoas rks oknh }kjk gLrxr okn izfroknhx.k ds fo#) izfroknh dEiuh }kjk oknh QeZ ds iz'uxr dk;Z isVs cdk;k jkf'k dh olwyh gsrq izLrqr fd;k x;k gS ,oa bl lanHkZ esa i{kdkjku ds e/; O;olkf;d laO;ogkj gqvk gSaA gLrxr okn dh lquokbZ dk {ks=kf/kdkj@Jo.kkf/kdkj bl U;k;ky; dks ugha gksus ds laca/k esa izfroknh i{k }kjk ;g vkif?k yh x;h gS fd oknh o izfroknh i{k ds e/; gq;s bdjkj ds vk/kkj ij i{kdkjku ds e/; fookn mRiUUu gksus ij mldk fuiVkjk ,d ek= {ks=kf/kdkj fnYyh fLFkr U;k;ky; dks gh gksus ls oknh dk okn {ks=skf/kdkj ds vHkko esa [kkfjt fd;s tkus ;ksX; gSA bl lanHkZ esa i=koyh dk voyksdu fd;k tkoas rks oknh us vius okni= ds in la[;k 16 esa gLrxr okn dh lquokbZ dk {ks=kf/kdkj o Jo.kkf/kdkj okf.kfT;d U;k;ky; dks gksus ds laca/k esa rF; vafdr fd;s gSaA oknh }kjk bl ckcr mHk; i{kkas ds e/; gq;s fyf[kr djkj ds DykWt 51 dh vksj U;k;ky; dk /;ku vkdf"kZr djok;k] ftlesa fd bdjkjukek fu"iknu ds LFkku ij fookn dk {ks=kf/kdkj gksuk cr;k x;k gSA vr% bl ckcr mHk; i{k ds ijLij fojks/kkHkklh dFku gksus ds dkj.k bl iz?e ij bl ckcr dksbZ jk; dk;e ugha dh tk ldrh vfirq mHk; i{k dh lk{; ds ckn gh bl ckcr fu"d"kZ ikfjr fd;k tkuk U;k; laxr gSA lkFk gh izfroknh }kjk fof/kuqlkj vius tokcnkosa esa m? vkif?k;ka mBk;s tkus ij fookn fcUnq dk;e fd;s tkdj mHk; i{k dh lk{; ds vk/kkj ij fu"d"kZ ikfjr fd;k tkuk izk?frd U;k; ds vuq:i gSA blfy;s bl Lrj ij ;g r; ugha fd;k tk ldrk fd okn dh lquokbZ dk {ks=kf/kdkj@Jo.kkf/kdkj bl U;k;ky; dh gS ;k ugha\ ;gka ;g Hkh mYys[kuh; gS fd nkok izLrqfr ls iwoZ oknh }kjk ftyk fof/kd lsok izkf/kdj.k ds le{k okf.kfT;d U;k;ky; vf/kfu;e dh /kkjk 12&, ds vraxZr okn izLrqr fd;k x;k Fkk] ftlesa izfroknh ds ugha vkus ds dkj.k ukWu LVkVZj fd;k x;kA ml le; izfroknh ftyk fof/kd lsok izkf/kdj.k] tks/kiqj ds le{k bl laca/k esa vkif?k dj ldrk Fkk] ijUrq izfroknh us ftyk fof/kd lsok izkf/kdj.k ds le{k vkuk mifLFkr ugha le>k] ftlls ifjyf{kr gkrsk gS fd izfroknh Lo;a okn izLrqfr ls iwoZ e/;LFkrk dk;Zokgh ds fy;s rRij ugha jgkA izfroknh ds m? vkpj.k ls Li"V gkrsk gS fd izfroknh Lo;a e/;LFkrk dk;Zokgh ds izfr bPNqd ugha jgk gSA vc bl iz?e ij izfroknh }kjk e/;LFk fu;qf? ckcr dh x;h vkif?k mijks? foospu ds ifjizs{; esa Lohdkj fd;s tkus ;ksX; ugha gSA fu"d"kZr% izfroknh }kjk izLrqr izkFkZuki= /kkjk 8 ?1? lifBr /kkjk 5 ek/;LFke ,oa lqyg vf/kfu;e] 1996 lifBr vkns'k 7 fu;e 11 fl-iz-la- vLohdkj fd;k tkrk gSA vkns'k lquk;k x;kA i=koyh vfxze dk;Zokgh gsrq fnukad 17-10-2024 dks is'k gkasA^^ English Translation :- “The arguments of both parties have been carefully examined and duly considered. The judicial precedents submitted by both parties were respectfully reviewed and analyzed to seek guidance and the file was perused. In continuation of the arguments advanced by both parties, a perusal of the material available on record reveals that the present suit has been filed by the plaintiff against the defendants for the recovery of outstanding dues arising out of the work executed by the plaintiff firm for the defendant company. It is evident from the record that a commercial transaction had taken place between the parties in this regard. The defendant has raised an objection regarding the lack of jurisdiction/hearing authority of this court for the present suit, stating that based on the agreement between the plaintiff and the defendant, any dispute arising between the parties shall have sole jurisdiction with the court located in Delhi. Therefore, the plaintiff's suit is liable to be dismissed due to lack of jurisdiction. Therefore, the plaintiff's suit is liable to be dismissed due to lack of jurisdiction. Upon examination of the case record, it is observed that in paragraph 16 of the plaint, the plaintiff has stated facts asserting that the jurisdiction for hearing and adjudication of the present suit lies with the Commercial Court. The plaintiff has drawn the Court’s attention to Clause 51 of the written agreement executed between the parties, which specifies that jurisdiction shall vest in the courts at the place where the agreement was executed. In view of the mutually contradictory assertions made by both parties in this regard, no conclusive opinion can be formed at this stage. It would be appropriate and just to arrive at a determination on this issue only after the parties have led their evidence. Furthermore, when the defendant, in accordance with legal procedure, raises such objections in its reply, it would be in line with the principles of natural justice to frame issues accordingly and arrive at a conclusion based on the evidence presented by both parties. Therefore, at this preliminary stage, it cannot be conclusively determined whether this Court has the territorial jurisdiction or authority to hear and adjudicate the suit or not. It is also noteworthy that prior to filing the suit, the plaintiff had initiated proceedings under Section 12-A of the Commercial Courts Act before the District Legal Services Authority (DLSA). However, due to the non-appearance of the defendant, the matter was treated as a non-starter. At that stage, the defendant had the opportunity to raise objections before the DLSA, Jodhpur, but chose not to appear before the said authority. This conduct reflects that the defendant was not inclined to participate in the pre-institution mediation process. From the aforementioned conduct of the defendant, it is evident that the defendant was not genuinely interested in pursuing mediation proceedings. Accordingly, the objection now raised by the defendant regarding the appointment of a mediator is not tenable in light of the above discussion and is not liable to be accepted. In conclusion, the application presented by the defendant under Section 8(1) read with Section 5 of the Arbitration and Conciliation Act, 1996, read with Order VII Rule 11 of the Code of Civil Procedure, stands dismissed. The order has been pronounced. The case file is hereby directed to be listed for further proceedings on 17.10.2024.” 8. In conclusion, the application presented by the defendant under Section 8(1) read with Section 5 of the Arbitration and Conciliation Act, 1996, read with Order VII Rule 11 of the Code of Civil Procedure, stands dismissed. The order has been pronounced. The case file is hereby directed to be listed for further proceedings on 17.10.2024.” 8. Before proceeding further, it is necessary to have a glance at section 8 of A & C Act which provides as under :- “ Power to refer parties to arbitration where there is an arbitration agreement. :- (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof : [Provided that where the original arbitration agreement or acertified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.] (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.” 9. As per sub-section (1), it is therefore absolutely essential for resorting to section 8 of A & C Act that there is an agreement between the parties. Pertinently, the appellant-company has pleaded that the Sub-letting contract dated 19 th April 2017 contained the provision for arbitration under clause 23 and clause 24. 10. Such clauses in the sub-letting contract are reproduced herein below:- “ 23. Pertinently, the appellant-company has pleaded that the Sub-letting contract dated 19 th April 2017 contained the provision for arbitration under clause 23 and clause 24. 10. Such clauses in the sub-letting contract are reproduced herein below:- “ 23. Jurisdiction : This agreement shall be subject to the jurisdiction of Courts at Delhi only. 24. Dispute resolution : Any difference or dispute arising out of or in connection with this subcontract, if not resolved amicably between the parties hereto, shall be settled through Arbitration by a panel of three Arbitrators. Both the parties shall nominate each arbitrator and both the arbitrators shall be combined to nominate third arbitrator. Such Arbitration shall be held in Delhi and as per the provisions of the Arbitration & Conciliation Act, 1996 or any amendment thereof.” 11. The preamble to A & C Act, 1996 extensively refers to the United Nations Commission on International Trade Law (UNCITRAL) and the Model Rules. It refers to the significant contributions made by the Model Law and Rules to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in the international commercial relations. It further mentions that it was expedient to make laws for the arbitration and conciliation proceedings taking into account the Model Law and Rules. Quite clearly, the legislative intention was to bring the domestic and international commercial arbitration in line with the UNCITRAL Model Rules and the New York Convention and Geneva Convention. The main objective of A & C Act is to make provision for an arbitral procedure which is fair and efficient while minimizing the supervisory role of the Courts in the arbitral process. Section 5 of A & C Act clearly brings out the object behind enacting this new Act for encouraging expeditious resolution of dispute with less expenses. The non-obstante clause under section 5 provides that there shall be minimal judicial interference as to the matters provided under Part-I even if there is anything contrary in force. As to the matters governed by Part-I, in “Swiss Timing Ltd. v. Commonwealth Games, 2010 Organising Committee, (2014) 6 SCC 677 ”, the Hon’ble Supreme Court held as under :- “ 25. As noticed above, the concept of separability of the arbitration clause/agreement from the underlying contract has been statutorily recognised by this country under Section 16 of the Arbitration Act, 1996. As noticed above, the concept of separability of the arbitration clause/agreement from the underlying contract has been statutorily recognised by this country under Section 16 of the Arbitration Act, 1996. Having provided for resolution of disputes through arbitration, parties cannot be permitted to avoid arbitration, without satisfying the Court that it will be just and in the interest of all the parties not to proceed with the arbitration. Section 5 of the Arbitration Act provides that the Court shall not intervene in the arbitration process except in accordance with the provisions contained in Part I of the Arbitration Act. This policy of least interference in arbitration proceedings recognises the general principle that the function of courts in matters relating to arbitration is to support arbitration process. A conjoint reading of Section 5 and Section 16 would make it clear that all matters including the issue as to whether the main contract was void/voidable can be referred to arbitration. Otherwise, it would be a handy tool available to the unscrupulous parties to avoid arbitration, by raising the bogey of the underlying contract being void.” 12. At this stage, it is contextually relevant to note that the appellant-company made the following prayer in the application under section 8(1) read with section 5 of A & C Act :- “The learned Court, in view of the salient terms of the subsisting agreement dated April 19, 2017 pleased to direct case no.35 of 2022 before the learned Court at Jodhpur be relegated to arbitration in view of clause 24 to the agreement dated April 19, 2017 and direct the parties before this learned Court to act in terms of the Arbitration and Conciliation Act, 1996 (as amended upto dated) and proceed likewise; Any other order/orders and/or direction/directions as to which this learned court may deem fit and proper;” 13. The Presiding Judge of the Commercial Court referred to the plaint averments in paragraph no.16 wherein the respondent no.1 pleaded that the Court at Jodhpur shall have jurisdiction to decide Civil Original Miscellaneous Case/NCV No.35 of 2022. However, the learned Presiding Judge while dealing with the objection taken by the appellant-company that the Court at Jodhpur shall have no jurisdiction to deal with the present suit held that no decision at that stage as regards jurisdiction of the Court can be rendered in view of the conflicting pleadings and stand taken by the rival parties. However, the learned Presiding Judge while dealing with the objection taken by the appellant-company that the Court at Jodhpur shall have no jurisdiction to deal with the present suit held that no decision at that stage as regards jurisdiction of the Court can be rendered in view of the conflicting pleadings and stand taken by the rival parties. In our opinion, the Presiding Judge was not required to go into the matter of jurisdiction and wrongly held that the issue of jurisdiction can be decided on the basis of the evidence produced by the parties on framing of a specific issue on jurisdiction of the Court. In “Mcdermott International Inc. v. Burn Standard Co. Ltd. & Ors., 2006 11 SCC 181 ”, the Hon’ble Supreme Court held that A & C Act assigns supervisory role to the Courts to ensure fairness and interference of the Court is envisaged in limited circumstances such as fraud by or bias of the arbitrator or violation of natural justice. It was thought necessary that the intervention of the Court should be at minimum level because such an approach would justify the decision of the parties to the agreement who made a conscious decision to exclude the Court’s jurisdiction by opting for arbitration. In “Mcdermott International Inc.”, the Hon’ble Supreme Court further held that the question of jurisdiction is required to be raised through arbitration proceedings or soon after initiation thereof and the jurisdictional issue shall be required to be determined as a preliminary issue. Even otherwise, the principle of kompetenz-kompetenz requires that the arbitral Tribunal should exercise jurisdiction over the dispute under the arbitration agreement and any challenge to the existence or validity of the arbitration agreement shall not prevent the arbitral Tribunal from proceeding with the hearing and ruling upon its jurisdiction [refer, “Chloro Control (I) P. Ltd. v. Severn Trent Water Purification INC. & Ors., 2013 (1) SCC 641 ”]. 14. This is a matter of record that the dispute between the appellant-company and the respondent no.1 involved the execution of work detailed under the Sub-letting contract dated 19 th April 2017 which contained a jurisdiction clause and the dispute resolution clause. According to clause 23 of the Sub- letting contract dated 19 th April 2017, the Sub-letting agreement shall be subject to the jurisdiction of only the Courts at Delhi. According to clause 23 of the Sub- letting contract dated 19 th April 2017, the Sub-letting agreement shall be subject to the jurisdiction of only the Courts at Delhi. Clause 24 provided that any difference or dispute arising out of or in connection with the sub-contract shall be adjudicated through arbitration to be held at Delhi and as per the provisions of A & C Act or any amendment thereof. Indisputably, clause 24 provided a dispute resolution mechanism whereunder the parties to the sub- contract are required to make endeavors for resolution of any difference or dispute through amicable settlement. It further provided that if no amicable solution is explored by the parties then their dispute shall be settled through arbitration by a panel of three arbitrators. The manner in which the arbitrators shall be appointed is also provided under clause 24. In “Hindustan Petroleum Corporation Ltd. v. M/s Pinkcity Midway Petroleums, (2003) 6 SCC 503 ”the Hon’ble Supreme Court held that it is mandatory for the civil Court to refer the disputes to the arbitrator if a party before the civil Court contends that there is a clause for arbitration in the agreement between the parties. With reference to section 16 of A & C Act, “Hindustan Petroleum” further decided the question raised by a party relating to non-applicability of the arbitration clause. It was ruled that section 16 empowers the arbitral Tribunal to decide the question of jurisdiction of the Tribunal and to rule and to decide any objection with respect to the existence or validity of the arbitration agreement. 15. We must further indicate that the dispute arising between the appellant-company and the respondent no.1 does not involve the Public Health Engineering Department which is the Employer under the agreement dated 18 th September 2012. Clause 51 of the agreement dated 18 th September 2012 provided that any dispute arising between the parties in respect of any of the matters included in the agreement shall be settled by a competent Court having jurisdiction over the place where the agreement was executed and by no other Court. Having been so provided, clause 51 of the said agreement shall have no application to decide the jurisdiction of the Court when the dispute is not between the appellant-company with the Employer. Having been so provided, clause 51 of the said agreement shall have no application to decide the jurisdiction of the Court when the dispute is not between the appellant-company with the Employer. Leaving aside this issue, the finding of the Commercial Court cannot be countenanced in law, that the appellant-company did not participate in the pre- institution mediation and thus demonstrated by its conduct that it was not interested in resolution of the dispute through arbitration and therefore the application seeking reference to arbitration was liable to be rejected. Even if it is assumed that pre-institution mediation is mandatory, the dispute between the parties could have been resolved only when they would have arrived at a mutually agreed solution and not otherwise. In our opinion, the object behind incorporating section 12-A in the Commercial Courts Act, 2015 is to provide a forum for the aggrieved party to seek amicable settlement of the dispute in the first instance and then only to approach the Court. Non participation of the appellant- company in pre-institution mediation proceedings cannot debar it from seeking reference to arbitration in terms of clauses 23 and 24 of the Sub-letting agreement dated 19 th April 2017. The Commercial Court did not appreciate that the language of section 8 is peremptory in nature and it is obligatory for the Court to refer the parties to arbitration in terms of their arbitration agreement in cases where there is an arbitration clause , [P. Anand Gajapathi Raju & Ors. v. P.V.G. Raju (Died), (2000) 4 SCC 539 ] . It further failed to appreciate that after an application under section 8 of A & C Act is made nothing remains to be decided in the original action except to refer the dispute to an arbitrator. We may also refer to the decision in “Ravi Prakash Goel v. Chandra Prakash Goel & Anr., AIR 2007 SC 1517 ”wherein the Hon’ble Supreme Court held that the parties cannot be compelled to take recourse to the civil Court if the dispute is referable to arbitration. In view thereof, the Commercial Court committed serious error in law in refusing to entertain the application moved by the appellant-company seeking a reference to arbitration and the reasoning so provided by the Commercial Court to dismiss such application is clearly erroneous and cannot be countenanced in law. 16. In view thereof, the Commercial Court committed serious error in law in refusing to entertain the application moved by the appellant-company seeking a reference to arbitration and the reasoning so provided by the Commercial Court to dismiss such application is clearly erroneous and cannot be countenanced in law. 16. For the foregoing reasons, the order dated 12 th September 2024 passed in contravention to the mandatory provisions under section 8 of A & C Act is set aside. The application filed by the appellant-company under section 8 (1) read with section 5 of A & C Act and under Order VII Rule 11 Code of Civil Procedure is allowed. The parties shall proceed to nominate the arbitrator of their own choice and the arbitrators so chosen shall nominate a third arbitrator as provided under clause 24 of the Sub-letting agreement dated 19 th April 2017. 17. D.B. Civil Miscellaneous Appeal No.3045 of 2024 is allowed in the aforesaid terms.