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2007 DIGILAW 1112 (MAD)

Raju M. Jethwani & Another v. Kishore B. Jethwani

2007-03-28

S.ASHOK KUMAR

body2007
Judgment :- This Civil Revision Petition is filed against the order dated 111. 2006 made in I.A.No: 14864 of 2006 in O.S.No:5 of 2006 passed by the learned II Additional Judge, City Civil Court, Chennai, rejecting the request of the petitioners/defendants to reject the plaint itself as not maintainable. 2. The respondent herein filed the suit claiming a sum of Rs.3,85,280.92 together with interest at 18% per annum from the date of plaint till realisation and for costs. Pending the suit, the defendants the interlocutory application contending that in Clause 15 the Partnership Deed executed between the defendants and the plaintiff dated 110. 2000, it is stated that all the disputes between the partners in relation to partnership business shall be referred to arbitration. The jurisdiction of a civil court in adjudicating the dispute between the plaintiff and the defendants is completely ousted in view of the provisions of the Arbitration and Conciliation Act, 1996. The suit is also not maintainable by virtue of misjoinder of cause of action under Order 2, Rule 7 CPC. The averments in the plaint if taken as such disclose two principal causes of action namely, (i) claim allegedly arising out of the dissolution of partnership as on 4. 2020 being one of the cause of cause of action and (ii) claim arising out of the financial assistance allegedly given by the plaintiff to he first defendant from 1. 2003 onwards. According to the defendants these two causes of action are independent of each other and separate in nature and period. The plaintiff is not entitled to claim any relief on the first cause of action against the second defendant. It is a clear case of misjoinder of cause of action and for this reason also the plaint is liable to be rejected. 3. The plaintiff resisted the said application contending that as per the dissolution deed, the first defendant is liable to pay money to the plaintiff and only if there is a difference of opinion or and dispute arising out of the partnership deed, then only the same has to be referred to the arbitration. .4. 3. The plaintiff resisted the said application contending that as per the dissolution deed, the first defendant is liable to pay money to the plaintiff and only if there is a difference of opinion or and dispute arising out of the partnership deed, then only the same has to be referred to the arbitration. .4. The learned II Additional Judge, City Civil Court, Chennai, on a consideration of the averments and the submissions made by the respective counsel did not incline to reject the plaint holding that mere misjoinder of causes of action is not a ground for rejection of the plaint under Order 7 Rule 11 CPC. Aggrieved of the same, the present CRP is filed by the defendants. 5. Learned counsel for the petitioners while reiterating the points raised before the lower court relied upon the decision of the Apex Court in Hindustan Petroleum Corpn., ltd., Vs. M/s.Pinkcity Midway Petroleums, reported in 2003 AIR SCW 3558 and contended that the jurisdiction of the civil court is ousted in view of the arbitration clause found in the partnership deed. .6. But a perusal of Clause 15 of the partnership deed would show that "in case of any dispute of difference of opinion between the partners hereto in respect of the partnership business either during the continuance of the partnership or at any time thereafter, the same shall be solved by means of Arbitration". But admittedly, in the present case by consent, the first defendant entered into the dissolution deed and as per the said deed, the first defendant has to make payments to the plaintiff. Therefore, it cannot be termed that there is a dispute or difference of opinion in respect of the partnership business between the partners. Further, as per the dissolution deed, the plaintiff is the only person entitled to recover the money from the first defendant as agreed by the first defendant and the first defendant has also borrowed money from the plaintiff. Therefore, as rightly stated by the plaintiff, he can file the suit for recovery of the moneys due from the first defendant and he is also nettled to recover the same as claimed in the suit. Therefore, the misjoinder of causes of action is not a ground for rejection of the plaint. Therefore, as rightly stated by the plaintiff, he can file the suit for recovery of the moneys due from the first defendant and he is also nettled to recover the same as claimed in the suit. Therefore, the misjoinder of causes of action is not a ground for rejection of the plaint. The decision relied upon by the learned counsel for the petitioners would be applicable only if there exists a dispute or difference of opinion between the parties. But as already referred, in the present case, there is no dispute or difference of opinion in respect of the partnership business between the partners. But the dispute is only with respect to payment of money as agreed by the first defendant in the dissolution deed. So also the decision relied upon in Lala Ram Vs. Lala Om Prakash (AIR 1954 All. 383) is also not applicable to the facts of the present case since in the said case it has been held that s two reliefs against the arising out of the same transaction cannot be claimed against debtor of the dissolved partnership as well as against one of the partners, which is not so in the present case. Under these circumstances, the CRP is liable to be dismissed. 7. In the result, the CRP is dismissed. Consequently, connected MP is also dismissed. No costs.