Orissa High Court

Ranjita Naik And Others vs Laxmipriya Naik And Others .... ... on 22 September, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 26-Sep-2025 16:22:38




                                      IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                      C.M.P. No.538 of 2025

                            (In the matter of an application under Article 227 of the Constitution of
                            India)

                             Ranjita Naik and others                     ....                 Petitioners
                                                                      -versus-
                             Laxmipriya Naik and others                 ....            Opposite Parties

                            Advocate(s) appeared in this case:-

                                          For Petitioners          : Mr. A.P. Bose, Advocate

                                          For Opposite Parties     : Mr. G.R. Sahoo, Advocate
                                                                     For O.P. Nos.1 & 2

                                                                     Mr. J. Pal, Advocate
                                                                     For O.P. Nos.3(b) to 3(d)

                                                                     Mr. T.K. Mishra, Advocate
                                                                     For O.P. No.4

                                            CORAM: JUSTICE B.P. ROUTRAY
                                                              JUDGMENT

nd 22 September 2025

B.P. Routray, J.

1. Heard Mr. A.P. Bose, learned Advocate for the Petitioners, Mr.

G.R. Sahoo, learned Advocate for Opposite Parties 1 & 2, Mr. J. Pal,

learned Advocate for Opposite Parties 3(b) to 3(d) and Mr. T.K.

Mishra, learned Advocate for Opposite Party No.4.

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

2. Present C.M.P. is directed against the order dated 29.03.2025 of

the learned Senior Civil Judge, 1st Court, Cuttack passed in C.S.

No.1161 of 20224, wherein the prayer of the Defendants 3 to 5 to treat

the certified copy of the partnership deed for the purpose of arbitration

has been refused and they are directed to produce the original thereof.

3. Present Opposite Parties 1 & 2 are the Plaintiffs, who filed the

suit, praying for declaration relating to the shops as joint family

property and rendition of accounts along with other related reliefs. For

better appreciation, the reliefs prayed for in the plaint are reproduced

below:-

"(i) Let it be declared and decreed that the Jyotsna Alankar Bhandara illegally renamed as Jyotsna Alankar at Darghabazar and Rajlaxmi Jewellers at Nayapalli, Bhubaneswar are the joint family, i.e. Hindu undivided jewellery shops of both the parties.

(ii) Let it be directed the defendants for taking of accounts of the stock of jewelers, those are lying in both the shops in presence of both parties.

(iii) Let a decree be passed for settlement of accounts of the jewellery shops till the date of filing the suit.

(iv) Let it be declared that the plaintiffs have 1/5th share each in the jewellery shops and they are entitled to their share either in cash r in jewellery ornaments from the shops.

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

(v) Let it be declared that the plaintiffs are entitled to receive back their personal contribution to the jewellery business, i.e.Rs.1,66,47,071/- by the plaintiff no.1 and Rs.44,86,619/- by the plaintiff no.2.

(vi) Let the defendant no.3, who represents also defendant nos.4 and 5, be permanently injuncted in not creating any disturbances in running the two jewellery shops by the plaintiffs.

(vii) Let the cost of the suit be decreed in favour of the plaintiffs.

(viii) Let any other decree/decrees be passed, to which the plaintiffs are entitled to under law and equity."

4. Defendants 3 to 5, who are present Petitioners, upon their

appearance prayed to refer the matter for arbitration in terms of Section

8 of the Arbitration and Conciliation Act, 1996 (in short, "the Act").

For the said purpose, they filed a petition praying to treat the certified

copy of the original partnership deed containing the arbitration clause

as the requirement fulfilled for the purpose. This was objected by the

Plaintiffs that the alleged certified copy of the partnership deed

produced by Defendants 3 to 5 are the copies drawn from the

photocopies of the partnership deed produced by said Defendants in the

earlier arbitration proceeding, i.e. Arbitration Case No.91 & 92 of 2024

commenced under Section 9 of the Act at the instance of said

Defendants. Therefore, the certified copy of the partnership deed as

produced by Defendants 3 to 5 is not fulfilling the requirement in terms

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

of Section 8(2) of the Act. Considering such objection of the Plaintiffs

and other Defendants, the learned trial court in the impugned order

dated 29.03.2025 directed the Defendants 3 to 5 to produce the original

of the partnership deed.

5. From aforesaid analysis of the facts, the point falls for

consideration is whether production of certified copy of the partnership

deed by Defendants 3 to 5 would amount compliance under Section

8(2) of the Act ?

6. It remains undisputed that, the parties to the suit do not object

for referring the matter for arbitration as per Section 8 of the Act.

Defendants No. 3 to 5 do not deny the fact of possessing the original

partnership deed. In other words, it is not the case of the parties that the

original of the partnership deed is not available. Section 8 of the Act

reads as follows:-

"8. 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

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

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 a certified 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."

7. For referring the matter for arbitration according to the

provisions contained under sub-Section (2) of Section 8 of the Act, the

application filed under sub-Section (1) is bound to be accompanied by

the original arbitration agreement or a duly certified copy thereof.

8. In the present case, it is Defendants 3 to 5, who applied under

sub-Section (1) of Section 8 of the Act to refer the matter for

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

arbitration and they do not deny the fact of possessing the original

arbitration agreement.

9. The case of Defendants 3 to 5 is that, the certified copy produced

before the learned trial court obtained from the Commercial Court,

Bhubaneswar has been duly notarized to suffice the requirement of

sub-Section (2) of Section 8 of the Act where the certified copy of the

agreement is admissible for the purpose.

10. It is objected by the Plaintiffs and other Defendants that such

certified copy produced on behalf of the Defendants 3 to 5 is not a duly

certified copy of the original agreement as the present certified copy

has been drawn from a photocopy of the original agreement.

11. In order to get meaning of the expressions 'duly certified copy',

the provision under Section 76 of the Indian Evidence Act is profitable

to be referred. According to Section 76 of the Indian Evidence Act, a

public officer having custody of a public document may give a copy of

the same on demand with the certificate endorsed that the same is true

copy of such document along with the date, seal of the public officer

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

authorized to grant. Section 79 of the Indian Evidence Act speaks of

presumption attached to genuineness of the certified copies.

12. Here what is required as per sub-Section (2) of Section 8 of the

Act, it is the term "duly certified copy". In Atul Singh and others vs.

Sunil Kumar Singh and others, (2008) 2 SCC 602, the Hon'ble

Supreme Court while dealing with a similar issue have observed as

follows:-

"18. Sub-section (2) of Section 8 of the 1996 Act says that 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. As already stated in the earlier part of the judgment, Defendant 3 had moved an application on 25-11-2004 under Section 34 of the Arbitration Act, 1940 for staying the proceedings of the title suit and for referring the matter to arbitration. He filed a supplementary petition to the aforesaid application on 16-12-2004. Herein also reference was made to Section 34 of the Arbitration Act, 1940. Thereafter, he filed an application on 28-2-2005 praying that as the Arbitration Act, 1940 had been repealed and the suit is of 1998, to avoid any confusion, his earlier petitions may be treated to have been filed under Section 8 of the Arbitration and Conciliation Act, 1996. None of these petitions were accompanied by the original arbitration agreement dated 17-2- 1992 or a duly certified copy thereof. In fact, there is no requirement of filing the original arbitration agreement or a duly certified copy thereof under Section 34 of the Arbitration Act, 1940 and as such there was no occasion for Defendant 3

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

to file the aforesaid document. The third petition filed on 28-2- 2005 contained the following prayer:

"It is, therefore, prayed that Your Honour may graciously be pleased to treat the petitions dated 25-11-2004, 16-12-2004 and the present petition as supplement and part of each other for deciding the prayer with regard to stay of the proceedings of the aforesaid suit and/or to refer to arbitration in view of the arbitration agreement covering the subject- matter of this suit."

19. There is no whisper in the petition dated 28-2-2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear non-compliance with sub-section (2) of Section 8 of the 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of the partnership deed was on the record of the case. However, in order to satisfy the requirement of sub-section (2) of Section 8 of the Act, Defendant 3 should have filed the original arbitration agreement or a duly certified copy thereof along with the petition filed by him on 28-2-2005, which he did not do. Therefore, no order for referring the dispute to arbitration could have been passed in the suit."

13. In N. Radhakrishnan vs. Maestro Engineers and others, (2010)

1 SCC 72, the Hon'ble Supreme Court held as follows:-

"28. The learned counsel for the appellant, however, argued that since the notarised copy of the deed was already filed by the respondents before the Ist Additional District Munsiff

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

Court at Coimbatore, there was no need for the appellant to produce the same. The learned counsel for the appellant cited various decisions to substantiate his claim. But from a careful perusal of the order of the Ist Additional District Munsiff Court at Coimbatore in IA No. 494 of 2006 (in OS No. 526 of 2006) it would be evident that the learned Munsiff had noted that the appellant had filed a xerox copy of the partnership deed dated 7-4-2003 and had not filed the original copy thereof. Further, Ext. P-23 is the notarised copy of the partnership deed dated 6-12-2005, which was the reconstituted deed formed after the alleged retirement of the appellant from the firm. The learned counsel for the appellant pointed out to this deed and argued that since the original copy of this deed was filed by the respondents, there was no need for him to file the original copy thereof under Section 8(2) of the Act.

29. But it is to be noted herein that the claim of the appellant regarding the dispute was under the arbitration clause mentioned under the original partnership deed and not on the subsequent one. Since the original deed was not filed within the requirement of Section 8(2) of the Act, it must be held that the mandatory requirement under the Act had not been complied with. Accordingly, even if we accept the factum of a dispute relating to the retirement of the appellant under the original deed dated 7-4-2003, still the Court would not be empowered to refer the matter to an arbitrator due to the non- compliance with the provisions mentioned under Section 8(2) of the Act."

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

14. Mr. A.P. Bose, learned counsel for the Petitioners relies on a

decision of Calcutta High Court in M/s.Fullerton India Credit

Company Limited vs. Ms. Manju Khati (decided on 02.04.2024 in

C.O. No.3689 of 2015) to contend that the certified copy duly attested

by Notary Public cannot be said as not a duly certified copy of the

original. In the said cited case, it is observed by the Calcutta High

Court as follows:-

"12. In passing the impugned order learned Trial Court held that the defendant/petitioner has failed to produce either the original or the certificate copy of the agreement as required under Section 8(2) of the Arbitration and Conciliation Act, 1996. But in fact the petitioner/defendant filed the certified copy of the original agreement duly attested by the Notraby Public which in terms of the law cannot be said to be a not duly certified copy of the original agreement as required under the provision of the Act. It appears that after getting summons from the Trial Court the petitioner as defendant entered appearance in the said suit and filed an application under Section 8 of the Arbitration and Conciliation Act with a prayer to refer the matter before the arbitrator over the disputes cropped up in between the parties and from the arbitration clause it is clear that all disputes, differences and/or claims arising out of or in relation to this agreement shall be settled by arbitration in accordance with the provisions of the Act of 1996.

xxx xxx xxx

Signed by: BASANTA KUMAR BARIK

Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 16:22:38

24. Since the certified copy of the agreement attested by the Notary Public was filed within the requirement of Section 8(2) of the Act, it must be held that the mandatory requirement under the Act had been complied with. Accordingly, the Court would be empowered to refer the matter to an arbitrator due to the compliance with the provisions mentioned under Section 8(2) of the Act."

15. As seen from the above case of Calcutta High Court, the copy

produced was attested by Notary Public of the original agreement.

Therefore, it implies that the original agreement was produced before

the Notary Public, who duly attested the same upon notarising it in

terms of the provisions contained in the Notaries Act, 1952. But in the

given facts of the present case, the certified copy brought from the

Commercial Court is drawn from the photocopy of the original

partnership deed. It is not the contention of the Defendants 3 to 5 that

the original partnership deed is in the custody of the Commercial Court

at Bhubaneswar wherefrom the certified copy was drawn by the public

officer. A certified copy drawn from a photocopy of a document carries

the presumption of genuineness of the photocopy and not the original.