Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 595 (PNJ)

Jagdish Raj v. Surinder Kumar

2007-03-21

VINEY MITTAL

body2007
JUDGMENT Viney Mittal, J. (Oral) - On an oral request made by the learned counsel for the petitioner at the outset, the present petition is treated to be a petition filed under Article 227 of the Constitution of India. 2. Defendant No. 1 Jagdish Raj is petitioner before this Court. He has challenged the order dated May 3, 2002 passed by the learned Additional Civil Judge (Senior Division), Amritsar whereby an application filed under Section 34 of the Arbitration Act, 1940 read with Section 8 of the Arbitration and Conciliation Act, 1996 has been rejected. 3. A suit for recovery of an amount of Rs. 4,50,000/- was filed by the plaintiff-respondent Surinder Kumar. It was claimed by the plaintiff that he along with the defendants was a partner of the firm. He claimed the aforesaid amount along with interest. 4. The defendants appeared before the trial Court and filed an application for appointment of an Arbitrator. It was claimed by them that as per a specific clause in the partnership deed dated March 20, 1981, any dispute between the partners was required to be referred for adjudication before the Arbitrator. 5. The aforesaid application filed by the defendants was contested by the plaintiff. It was maintained by him that the original partnership deed dated March 20, 1981 stood superseded through a fresh partnership deed dated 1, 1988 and as such the reliance placed by the defendants on the original partnership deed was without any justification. 6. The learned trial Court noticed that the original partnership deed stood substituted by subsequent partnership deed but also observed that in the new partnership deed there was no arbitration clause and as such dismissed the application filed by the defendants. 7. Shri Sunil Chadha, the learned counsel appearing for the plaintiff respondent No. 1 has raised a preliminary objection. It has been claimed by the learned counsel that since the defendants had failed to file a written statement before the trial Court and as such having taken steps in aid of the proceedings, the claim for appointment of an Arbitrator made by defendant No. 1 did not subsist any long. However, I do not find any merit in the aforesaid contention. 8. It is not in dispute that the written statement in question has been filed by the defendants after the impugned order dated May 3, 2002. However, I do not find any merit in the aforesaid contention. 8. It is not in dispute that the written statement in question has been filed by the defendants after the impugned order dated May 3, 2002. The present revision petition came up for hearing before this Court on August, 22, 2002. Notice of motion was issued. However, at that point of time no interim order was passed. The interim order came to be passed on September 5, 2005. In the intervening period with effect from August 22, 2002 till September 5, 2005 when there was no interim order staying the proceedings before the trial Court, then the defendants had been compelled to file the written statement. Since the said written statement had been filed by the defendants after the passing of the impugned order, therefore, the said filing of the written statement cannot be taken to be a step in aid of proceedings in the main suit before the filing of the application. 9. At this stage, the learned counsel for the plaintiff respondent No. 1 very fairly states that the observations made by the trial Court that there was no arbitration clause in the subsequent partnership deed dated April 1, 1998 are factually incorrect and indeed there is an arbitration clause in the said partnership deed. However, the learned counsel maintains that the nature of dispute raised by the plaintiff was not such a dispute which could be referred for adjudication to the Arbitrator. 10. Keeping in view the fact that the observations made by the learned trial Court on a question of fact are incorrect and there does exist an arbitration clause even in the new partnership deed dated April 1, 1988, therefore, the order dated May 3, 2002 passed by the trial Court is set aside. 11. Whether or not the dispute between the parties is referable to the Arbitrator would be a question which shall have to be decided by the trial Court, in accordance with law. Consequently, the present revision petition is allowed. The order dated May 3, 2002 passed by the trial Court is set aside. The matter is remanded back to the trial Court for deciding afresh the application filed by the defendants for reference of the dispute to the Arbitrator. However, the parties shall have the liberty to raise all the pleas which are available to them in accordance with law. The matter is remanded back to the trial Court for deciding afresh the application filed by the defendants for reference of the dispute to the Arbitrator. However, the parties shall have the liberty to raise all the pleas which are available to them in accordance with law. Parties through their learned counsel are directed to appear before the trial Court on May 14, 2007. A copy of the order be given dasti on payment of usual charges. Petition allowed.