A construction subcontract with no arbitration clause led to a suit for recovery of dues; the trial court invoked Section 89 CPC to refer the dispute to arbitration over the defendant's objection that it had never agreed to arbitrate.

Code of Civil Procedure, 1908 -- S. 89 -- reference to ADR -- consent required for arbitration/conciliation -- Section 89 CPC -- the five ADR processes -- reading down a drafting anomaly -- Held: Section 89 CPC, as drafted, uses the terms "arbitration" and "conciliation" in a manner inconsistent with the Arbitration and Conciliation Act, 1996, producing an anomaly if read literally. The provision must be read harmoniously with Part I of the 1996 Act so as to give effect to its evident purpose -- enabling courts to refer pending suits to one of five ADR processes: arbitration, conciliation, judicial settlement (including through Lok Adalat), and mediation. Consent as the dividing line -- Held further: Arbitration and conciliation are adjudicatory/consensual processes governed by a separate self-contained statute and can be resorted to only where all parties to the suit consent; a civil court cannot, merely by invoking Section 89, compel parties who have not agreed to arbitrate into an arbitration reference. By contrast, a court may refer parties to Lok Adalat, mediation or judicial settlement even without the express consent of all parties, since these processes do not oust the court's jurisdiction in the same way. Procedure and unsuitable cases -- Held further: After the first hearing under Order 10 Rule 1A CPC, the court must consider, in every suit, whether it is fit for reference to an ADR process, and record its reasons where it decides not to refer. Cases involving serious and complex allegations of fraud, forgery, coercion or fabrication, cases requiring public adjudication (e.g. serious criminal allegations), and cases affecting the rights of third parties or minors are ordinarily unsuited to ADR reference.

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