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17. POINT No. 2. Sri R.S. Hegde, the learned counsel appearing for the defendants, would submit that the order under revision has been made in violation of Section 20 of the Act. It is his contention that the defen-dants-3 in his objections has disputed the existence of the arbitration agreement and the dispute. Where the existence of the arbitration agreement and the existence of dispute between the parties is disputed, the Court to which the application has been filed under Section 20 of the Act, shall first decide, before making an order for filing the agreement and making an order of reference, whether there exists any arbitration agreement between the parties in respect of the subject matter of the dispute, and whether the agreement has been entered into before the institution of any suit with respect to subject matter of the agreement or any part of it; and, that the difference has arisen between the parties to which the agreement applies and that the Court has jurisdiction in the matter. In the absence of decision on these points there cannot be an order to file arbitration agreement and in the absence of which, there cannot be an order of reference. Once that is decided, the Court may order that the arbitration agreement to be filed and shall make a reference to arbitration.

It is these averments upon which the learned counsel places reliance and states that the defendants have disputed the existence of the dispute and also of the arbitration agreement.

19. Sri B. Gopala Hegde, learned counsel appearing for the plaintiff, argues that the defendants have not denied the existence of the arbitration agreement or the dispute and in the absence of denial of the agreement, the same is deemed to have been admitted and, therefore, the Court was not called upon to record any finding as to the existence or otherwise of the arbitration agreement and the dispute thereunder. He submits that the defendants on the other hand have admitted the agreement but states there is no provision in the agreement for arbitration and, therefore, the said plea shall be construed as an admission regarding the arbitration agreement. I am afraid such a construction cannot be extended, as the defendants say that in the agreement there is no provision to refer the matter to the arbitrator; meaning thereby that in the contract between the parties there is no clause providing for arbitration. In addition to this the parties to the proceeding and the Court have also understood that defendants have disputed the existence of the arbitration agreement. In this context it is material to extract the relevant portion from the order under revision-

It is seen from the aforesaid portion of the order that the parties and the court have understood the objections of the defendants that they have disputed the existence of the arbitration clause in the agreement. When the parties have disputed the existence of the arbitration agreement, the Court will have to decide whether there exists any arbitration agreement and its validity if that was also in dispute. In the case on hand, from the order extracted above, it is seen that the Court has not recorded any finding at all as to the existence of arbitration clause or as to the dispute. The Court has proceeded on the point whether the plaintiff has made out a case for referring the dispute to the arbitrator. It is the contention of Sri R.S. Hegde that the very approach of the learned Civil Judge is erroneous and has therefore resulted in miscarriage of justice. The Court ought to have considered the case of the parties as prescribed by Section 20 of the Act. The Court ought to have issued a notice to the defendants to show cause as to why the arbitration agreement should not be directed to be filed. The Court ought to have considered whether the defendants have not shown any cause for the notice issued.

20. From the reading of Section 20 as extracted above, it is clear that the Court, in which an application under Section 20 of the Act has been filed, shall have to first decide the disputed questions such as existence of the arbitration agreement and the dispute thereunder etc , before making any order of referenice under sub-section (4) of Section 20 of the Act. In the absence of any finding on any of the aforesaid points wherever they are disputed, there cannot be any order to file arbitration agreement. In the absence of any order to file arbitration agreement, the order referring the dispute to the arbitration is invalid.