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2012 DIGILAW 886 (PNJ)

Pawan Kumar v. Raj Kumar Chauhan

2012-07-09

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - C. M. No. 16439-C-II of 2012 : Allowed as prayed for. Main Case : 1. Defendant Pawan Kumar, by way of instant revision petition filed under Article 227 of the Constitution of India, has assailed order dated 26.04.2012 (Annexure P-6), passed by learned Civil Judge (Junior Division), Jalandhar, thereby dismissing application (Annexure P-2) filed by defendant-petitioner under Section 8 of the Arbitration and Conciliation Act, 1996 (in short – the Act). 2. Respondent-plaintiff Raj Kumar Chauhan has filed suit against defendant-petitioner vide plaint (Annexure P-1) for permanent injunction restraining the defendant from interfering in peaceful possession of the plaintiff over the suit land comprised in khasra no.1044/766 and from dispossessing him therefrom illegally and forcibly and from demolishing the construction raised by the plaintiff therein. The plaintiff alleged that he is in possession of the suit land since its purchase by him from the defendant. 3. Defendant moved application (Annexure P-2) under Section 8 of the Act alleging that both the plaintiff and defendant and others constituted partnership firm vide partnership deed dated 27.02.2008 (Annexure P-3) to carry on business of development of properties and construction of flats etc. in the name of M/s CH Land Developers. Flats were to be constructed by the partnership firm in the suit land. There is arbitration clause no.13 in the partnership deed. Accordingly, defendant prayed for stay of proceedings of the suit under Section 8 of the Act. 4. Plaintiff, by filing reply (Annexure P-4), resisted the application and pleaded that the dispute raised in the suit does not relate to partnership business. It was pleaded that partnership deed (Annexure P-3) has no concern with the present suit. It was thus alleged that Section 8 of the Act is not applicable to the suit. 5. Learned trial court, vide impugned order (Annexure P-6), dismissed the defendant’s application. Feeling aggrieved, defendant has filed this revision petition. 6. I have heard counsel for the petitioner and perused the case file. 7. Counsel for the petitioner vehemently contended that flats were to be constructed by the partnership firm in the suit land involved in the suit, and therefore, the dispute raised in the suit is covered by arbitration clause no.13 contained in the partnership deed. In this regard, reference was made to opening paragraph of the partnership deed as well as paragraph 3 thereof. In this regard, reference was made to opening paragraph of the partnership deed as well as paragraph 3 thereof. It was also contended that once there is arbitration clause in the agreement between the parties, the Court is obliged to refer the parties to arbitration and nothing remains to be decided by the Court in the suit, except to refer the dispute to Arbitrator. Reference in this regard was made to judgment of Hon’ble Supreme Court in the case of Hindustan Petroleum Corpn. Ltd. vs. M/s Pinkcity Midway Petroleums reported as 2003 (3) R.C.R. (Civil) 686. 8. I have carefully considered the aforesaid contentions, but the same cannot be accepted. 9. Perusal of the partnership deed (Annexure P-3), read as a whole, reveals that the partnership firm was constituted to carry on the business of development of properties, construction of flats and houses, real estate agents and other ancillary business or businesses. Thus, the very purpose of constituting the partnership firm was to carry on the aforesaid businesses in general and not to construct flats on the suit land. There is not even a reference of the suit land in the whole of the partnership deed. The suit land, according to the plaint (Annexure P-1), is a plot measuring 32.25 marlas comprised in khasra no.1044/766, situated in Basti Mithu, Jalandhar. There is neither any reference to the aforesaid khasra number nor to Basti Mithu in the partnership deed. Counsel for the petitioner contended that there is reference to Canal Road, back side Jammu Hospital, Kapurthala Road, Jalandhar in the partnership deed and it is the same place where the suit land is situated. The contention cannot be accepted. No such plea has even been taken in application (Annexure P-2). There is also no material on record to substantiate the aforesaid plea. Moreover, partnership deed does not state that the property at Canal Road, back side Jammu Hospital, Kapurthala Road, Jalandhar was to be developed or flats were to be constructed therein. On the contrary, partnership firm was to carry on its business from the said address. However, it was to carry on the business of development of properties anywhere and it is not specified in the partnership deed that it was to be done in suit land. No place has been specified in the partnership deed, on which the flats etc. were to be constructed by the partnership firm. However, it was to carry on the business of development of properties anywhere and it is not specified in the partnership deed that it was to be done in suit land. No place has been specified in the partnership deed, on which the flats etc. were to be constructed by the partnership firm. Consequently, it cannot be said the dispute raised in the suit by the plaintiff relates to partnership business of the partnership firm constituted by partnership deed (Annexure P-3). Resultantly, arbitration clause contained in the said partnership deed has no applicability to the dispute raised in the suit, as rightly held by the trial court in the impugned order. 10. Judgment in the case of Hindustan Petroleum Corpn. Ltd. (supra) has no applicability to the facts of the instant case. Arbitration clause contained in the partnership deed (Annexure P-3) relates to any dispute relating to the partnership deed or the partnership business, but does not apply to any other dispute. In the instant case, as noticed herein above, the dispute raised in the suit does not relate to partnership business or the partnership deed (Annexure P-3). Consequently, arbitration clause contained in the partnership deed has no applicability to the instant suit, and therefore, the dispute cannot be referred to the Arbitrator. 11. For the reasons aforesaid, I find no merit in this revision petition. Impugned order of the trial court does not suffer from any perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition is meritless and is, therefore, dismissed in limine.