JUDGMENT V. K. Mehrotra, J.—Civil Suit No. 54 of 1988 was instituted in this Court in its original civil jurisdiction by presentation of the plaint on June 17, 1988. The sole plaintiff described itself as M/s. Surinder Mahajan (Registered Partnership Firm) through Shri Surinder Mahajan, its partner. The two defendants were shown to be National Project Construction Corporation Ltd. and the Unit Officer, Chamera Unit. Several reliefs, founded on the claims made in the plaint, were claimed in the suit. 2. After the first defendant was served, an application was moved by it under section 34 of the Arbitration Act with the prayer that the proceedings be stayed as the parties had agreed that the disputes relating to the works in question would be determined only through arbitration. The order sheet of the suit shows that on November 2, 1988, Counsel for both the parties stated that they were agreeable to refer all the disputes to Mr. Justice H. R. Khanna (Retd.) as the sole arbitrator. They also stated that they would be moving a joint application under the provisions of section 21 of the Arbitration Act for referring the disputes to arbitration. Such an application (O M. P. No. 503 of 1988) was moved by the parties on December 6, 1988. In its opening part, the application is described as "an application under section 21 of the Arbitration Act for reference of the disputes between the parties to the sole arbitration of Mr, Justice H. R. Khanna....................” The application was disposed of by an order of December 7, 1988. In its material part the order says: ".........The parties have now jointly moved an application purporting to be one under section 21 of the Arbitration Act for referring the disputes to the sole arbitration of Mr. Justice H. R. Khanna..................... The parties have agreed on the following terms and conditions : As noticed above, the application has been moved jointly by both the parties. It is accepted and Mr. Justice H. R. Khanna, .........,..............is appointed as the sole Arbitrator for entering on the reference and making the award..............." 3. The proceedings went on before the sole Arbitrator for sometime. On July 9/10, 1989, an application was made on behalf of the first defendant before him with a prayer that the sole Arbitrator may, inter alia, direct that the claimant-firm had no locus standi to maintain the claim against the respondents. The proceedings went on before the sole Arbitrator for sometime. On July 9/10, 1989, an application was made on behalf of the first defendant before him with a prayer that the sole Arbitrator may, inter alia, direct that the claimant-firm had no locus standi to maintain the claim against the respondents. It was followed by another application dated August 18, 1989, made by the first defendant, wherein, after making a reference to the earlier application of July 9/10, 1989, it was said that the matter be referred back by the Arbitrator to this Court under section 13 (b) of the Arbitration Act. In both these applications it was stated by the first defendant (respondent before the Arbitrator) that at the time of the institution of the suit M/s. Surinder Mahajan was not a firm registered under the Indian Partnership Act, though it had misrepresented itself to be a registered firm. The defendant-respondents had discovered this fact subsequently and had also obtained a certificate from the office of the Registrar saying that no such firm as M/s. Surinder Mahajan was registered on June 27, 1987, or thereafter ; that the claimant was guilty of misleading the Court as also the Arbitrator in that regard ; that under section 69 of the Indian Partnership Act the claimant was not entitled to enforce its rights arising from a contract ; and that the claim filed by the claimant could not be adjudicated upon in the proceedings before the Arbitrator but the counter claim filed on behalf of the first defendant could be so adjudicated. The claimant filed its reply to the two applications. 4. The applications dated July 9/10, 1989, and August 18, 1989, were disposed of by the sole Arbitrator by his order of August 27, 1989, after hearing Counsel. The learned Arbitrator said that there was no sufficient ground for him to state a special case for the opinion of the High Court under section 13 (b) of the Arbitration Act. Also, that; "......it would be open to the parties to make whatever submissions they deem proper regarding the question about tie registration of the claimants firm or about its locus standi to file the claim and other matters at the time of final arguments.......,.” 5. Also, that; "......it would be open to the parties to make whatever submissions they deem proper regarding the question about tie registration of the claimants firm or about its locus standi to file the claim and other matters at the time of final arguments.......,.” 5. On November 23, 1989, the present O. M. P. No 451 of 1989 was filed in this Court by the National Project Construction Corporation Ltd., purporting to be under section 33 of the Arbitration Act read with section 151, C P. C. 6. It has been averred in the application that M/s. Surinder Mahajan was an unregistered firm which persuaded this Court to pass an order directing the disputes between the parties, in Civil Suit No. 54 of 1988, to be adjudicated by the sole Arbitrator by making a false representation that it was a registered partnership firm. The plaint erroneously mentioned, in paragraph 1, "that the plaintiff is a registered partnership firm carrying on different types of construction of buildings, including protection work, sewerage and water supply etc." Also, in reply to the plea contained in paragraph (1) of the statement of claim made by M/s. Surinder Mahajan before the Arbitrator, it was asserted that the contractor had not submitted proof of the firm being a registered partnership firm and, as such, it was denied that it was a registered firm. It was asserted in the rejoinder by M/s. Surinder Mahajan that in the suit before the High Court the respondents never disputed the fact that the claimants are a registered partnership firm and that the reference to arbitration had been made io the said suit and hence the respondents could not take the stand that the claimant had no locus standi. 7. The application (O. M, P. No. 451 of 1989) goes on to recite that in his affidavit dated May 5, 1989, filed before the Arbitrator, Shri Surinder Mahajan stated that he was a partner of the claimant-firm "which is a registered partnership firm carrying on business of Civil Engineering works......" Further, that in his cross-examination, held on May 20, 1989, before the Arbitrator several questions were put to Surinder Mahajan in this respect who was asked to produce proof of the firm being a registered firm, but he gave evasive replies in this regard. The Registrar of firms stated the fact of M/s. Surinder Mahajan not being a registered firm when a request was made by the Counsel for the first defendant to him in this regard, after an inspection of the relevant record in his office. Shri Surinder Mahajan continued to give evasive replies during his cross-examination before the sole Arbitrator even on July 8, 1989, so that the applications dated July 9/10, 1989, and thereafter of August 18, 1989, were made before the Arbitrator. Since the Arbitrator disposed of the applications by his order of August 27, 1939, noticed earlier, the present application had to be made. 8. It has been asserted repeatedly in this application that, inasmuch as, M/s. Surinder Mahajan was not a registered firm, it had no locus standi to institute civil suit No 54 ot 1988 in this Court or to obtain any relief therein. It played a trick by making a false declaration of being a registered firm and on that basis secured an order dated December 7, 1988, on O.M P. No. 503 of 1988 of reference of the disputes to a sole Arbitrator. The first defendant was misled by the misrepresentation practised by the plaintiff M/s. Surinder Mahajan that it was a registered firm. 9. The prayer in the application is that the order dated December 7, 1978, made on O M. P. No. 503 of 1988 be revoked or recalled. 10. M/s. Surinder Mahajan, in the reply filed in O. M. P. No. 451 of 1989, has come out with the plea that there was no deliberate misrepresentation by the plaintiff about the fact of registration of the firm as attributed to it The statement to that effect was made under a misapprehension, inasmuch as, the firm was registered under the Income Tax Act. It has been admitted (in paragraph 5 of the reply) that M/s. Surinder Mahajan was not a firm registered under the Partnership Act when the Civil Suit No. 54 of 1988 was filed. It has been asserted that reference to arbitration having been made on a joint application by the parties made in Civil Suit No. 54 of 1988, which stood dismissed when the parties agreed to refer the matter for arbitration, the defendants were estopped, from raising the question of validity of reference between the parties. It has been asserted that reference to arbitration having been made on a joint application by the parties made in Civil Suit No. 54 of 1988, which stood dismissed when the parties agreed to refer the matter for arbitration, the defendants were estopped, from raising the question of validity of reference between the parties. The further plea is that, inasmuch as the firm has been registered under the Partnership Act subsequently, the defect in that regard existing at the time of the filing of the suit stood cured It has also been said that the Arbitrator having refused to stay the proceedings at that time in his discretion and having left the matter for determination at the time of the final disposal of the proceedings, it was not open to the first defendant, now, to assail the order of reference or the continuance of the proceedings before the Arbitrator at this stage. In the affidavit-in-rejoinder filed on behalf of the National Project Construction Corporation Ltd it has been reasserted that, inasmuch as, civil suit No 54 of Is88 was itself not maintainable due to non-compliance of the provisions of section 69 (2) of the Partnership Act and reference to arbitration having been secured on a false representation on the part of the plaintiff in that suit to the effect that M/s. Surinder Mahajan was a firm registered under the Partnership Act, the objection that it was not open to them to assail the validity of the reference at this stage was not sustainable. Also, that subsequent registration of the firm under the Partnership Act was of no avail to M/s. Surinder Mahajan. 11. M/s. Surinder Mahajan was registered with the Registrar of Firms on July 22, i989. Also, that subsequent registration of the firm under the Partnership Act was of no avail to M/s. Surinder Mahajan. 11. M/s. Surinder Mahajan was registered with the Registrar of Firms on July 22, i989. Shri A. N. Parekh, appearing on behalf of the National Project Construction Corporation Ltd. and the Unit Officer, Chamera Unit, in support of the application (O. M. P. No, 451 of 1989), has urged that this Court should intervene at this stage itself and recall the order dated December 7, 1989, made on O. M. P. No. 503 of 1988, and revoke the appointment of the Arbitrator and the reference of disputes to arbitration on the grounds aforesaid, lest, the eventual failure of the claim of M/s. Surinder Mahajan before the Arbitrator on the ground of absence of the registration of the firm under section 69 of the Partnership Act may involve the parties in unnecessary expenditure and harassment. More so, when it is undisputed that at the time of the institution of the suit by M/s. Surinder Mahajan, and on the date when the order of reference of the disputes to sole Arbitrator was made, the firm was not a registered one under the provisions of the Partnership Act. Shri A. K. Goel, appearing on behalf of M/s. Surinder Mahajan has, however, submitted that this Court should not intervene in the matter at this stage because the Arbitrator has yet to go into the facts relating to the registration of the firm under the Partnership Act, the effect of subsequent registration as well as the plea, raised on behalf of M/s. Surinder Mahajan, that the reference to arbitration in the present case was not one under section 21 of the Arbitration Act but was one attributable to section 8 therefore. 12. In Raipur Development Authority and others v Mjs. Chokhamal Contractors and others (1989) 2 SC Cases 721, a Constitution Bench said, ia respect of tbe Arbitration Act (in paragraph 8) that: "The Act.........is an exhaustive code insofar as the law relating to arbitration is concerned. An arbitration may be without intervention of a court or with the intervention of a court where there is no suit pending or it may be an arbitration in a suit............ An arbitration may be without intervention of a court or with the intervention of a court where there is no suit pending or it may be an arbitration in a suit............ Tbe foundation of any arbitration proceeding is.........the existence of an arbitration agreement between the persons who are parties to the dispute.........The authority of an appointed arbitrator or umpire cannot be revoked except with the leave of the court, unless a contrary intention is expressed in the arbitration agreement............The court may on an application of any party to a reference remove an arbitrator or umpire who fails to ase all reasonable dispatch in entering on and proceeding with the reference and making an award. The court may remove an arbitrator or umpire who has misconducted himself or the proceedings. Where the court removes an umpire who has not entered on the reference or one or more arbitrators (not being ail the arbitrators), the court may on the application of any party to the arbitration agreement, appoint persons to fill the vacancies......,„” And, (in paragraph 16), referring to Seth Thawardas Pherumal v. Union of India, AIR 1955 SC 468 that: "......an arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the courts provided his error appears on the face of the award......" 13. In M/s. Shreeram Finance Corporation v. Yasin Khan and others, (1990) 3 SC Cases 476, while dealing with the provisions of section 69 (2) of the Partnership Act, the Supreme Court said (in paragraph 6) that: "in the present case the suit filed by the appellants is clearly hit by the provisions of sub-section (2) of section 69 of the said Partnership Act, as on the date when the suit was filed\ two of the partners shown as partners as per the relevant entries in the Register of Firms were not, in fact, partners, one new partner had come in and two minors had been admitted to the benefit of the partnership firm regarding which no notice was given to the Registrar of Firms. Thus, the persons suing, namely, the current partners as on the date of the suit were not shown as partners in the Register of Firms. The result is that the suit was not maintainable in view of the provisions of sub-section (2) of section 69 of the said Partnership Act....................Although the plaint was amended on a later date that cannot save the suit ..............." (emphasis mine) 14. A Constitution Bench of the Supreme Court decided Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd, on April 29, 1964. The decision is reported as AIR 1964 SC 1882. In it, the Supreme Court dealt with the phrase "other proceeding to enforce a right arising from a contract" occurring in section 69 (3) of the Indian Partnership Act. It said, in paragraph 9, that : "........the words "other proceeding" in sub-section (3) must receive their full meaning........... ...The sub-section provides for the application of the provisions of sub-sections (I) and (2) to claims of set-off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in subsection (3) and sub-section (4)". 15. The case was one in which there was an agreement of partnership between M/s. Foreign Import and Export Association (sole proprietary firm owned by the appellant Jagdish C Gupta) and M/s. Kajaria Traders (India) Ltd , for export of managanese ore to New York. One of the terms of the agreement was that in case of dispute the matter would be referred for arbitration in accordance with the Indian Arbitration Act There was dispute between the parties and an application was made by the respondent-Company under section 8 (2) of the Indian Arbitration Act for appointment of an Arbitrator. Jagdish Chandra Gupta appeared in court and objected to the institution of the petition, inter-alia on the ground that section 69 (3) of the Indian Partnership Act afforded a bar to the petition because the partnership was not registered. By majority, the High Court of Bombay held that section 69 (3) did not bar the application. The matter was taken to the Supreme Court in appeal by special leave. The Supreme Court, after its conclusion extracted above, allowed the appeal and setting aside the decision of the High Court dismissed the application under section 8 (2) of the Arbitration Act, 16. The matter was taken to the Supreme Court in appeal by special leave. The Supreme Court, after its conclusion extracted above, allowed the appeal and setting aside the decision of the High Court dismissed the application under section 8 (2) of the Arbitration Act, 16. The facts of the present case, narrated earlier, show that the appointment of the sole Arbitrator was made in a suit instituted in this Court by presentation of the plaint on June 17, 1988. On that date, admittedly, the plaintiff M/s. Surinder Mahajan, was not a firm registered with the Registrar of Firms. It came to be registered much later, on July 22,1989. On the date of the filing of the suit the bar of section 69 (2) was operative and the suit was not maintainable in terms thereof. Subsequent registration of Firm would not save the suit in view of the dictum of the Supreme Court in M/s. Shreeram Finance, (1990) 3 Supreme Court Cases 476. As a corollary, there could be no reference of the dispute to arbitration nor appointment of an Arbitrator made in such a suit under Chapter IV of the Arbitration Act. The plea that the subsequent registration of the firm would cure the defect, would also not be available to the plaintiff on the basis of the principle recognized by a Full Bench of the Lahore High Court in Nazir Ahmad and others v. Peoples Bank of Northern India Ltd. (in liquidation) through Official Liquidator, and others, AIR 1942 Lahore 289, as canvassed by Shri Goel. In that case the Court was dealing with a situation where a suit had been instituted against a Company in liquidation without leave of the Court which was necessary under section 171, Companies Act, 1913. The learned Judges ruled, following the position accepted by the English Courts in respect of the English statute law on the same subject from where section 171 had been borrowed, that proceedings in a suit, commenced without the leave, were not a nullity if leave is later granted by the Court, The decision cannot be pressed into aid by Shri Goel, as was attempted by him, in view of the clear pronouncement of the Supreme Court in M/s. Shreeram Finance Corporation. 17. 17. The reference to arbitration can also not be protected on the alternative submission that the proceedings in this Court could be attributed to section 8 v2) of the Arbitration Act. The dictum of the Supreme Court in Jagdish Chandra Gupta, AIR 1964 SC 1882, rules out this line of approach. 18. If the suit itself was not maintainable, on account of the bar contained in section 69 (2) of the Partnership Act, nor were proceedings even under section 8 (2) of the Arbitration Act on similar ground on account of section 69 (3), a reference to arbitration made by this Court by order, albeit on a joint application by the parties by order dated December 7, 1988 and proceedings before the Arbitrator, in consequence thereof, cannot be said to survive. It would not be fair or equitable to let the parties continue with the proceedings before the learned Arbitrator, whose very appointment, in the circumstances in which it came to be made, could not be made by this Court. The mere fact that the learned Arbitrator has so far not expressed any opinion about the effect of non-registration of the plaintiff-firm at the commencement of the proceedings and its subsequent registration under the Partnership Act, cannot legitimately be urged as a factor for not recalling the order dated December 7, 1989. More so, when the plaintiff cannot be said to be left without any remedy. The parties can still refer their dispute to arbitration, though without intervention of the Court. (See Smt. Rampa Devi and others v. Bishambhar Nath Puri and others, AIR 1976 Allahabad 19, and iqbal Singh and others v. Ram Narain and others, AIR 1977 Allahabad 352. 19. In conclusion, the application succeeds and is allowed. The order dated December 7, 1988, made by this Court in O. M. P. No. 503 of 1988 is recalled. Parties are, however, left to bear their own costs of this application. Appeal allowed. -