Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1993 (MAD)

R. Natarajan v. Dhanasekaran

2015-04-24

M.DURAISWAMY

body2015
Judgment :- 1. Heard R.Subramanian, learned counsel appearing for the petitioners and Mr. V. Lakshmi Narayanan, learned counsel for the first respondent/caveator. 2. Challenging the fair and final order passed in I.A.No.15 of 2014 in O.S.No.230 of 2013 on the file of the learned District Munsif, Dharmapuri, the defendants 2 and 4 have filed the above Civil Revision Petition. 3. The plaintiff filed the suit in in O.S.No.230 of 2013 for dissolution of partnership firm of M/s.Ananda Corporation at Dharmapuri being dissolved form the date of summons being served on the defendants and consequently for taking of accounts of the partnership firm, directing the second defendant to render true and proper accounts and pay the share amount that may be ascertained due to the plaintiff on taking of accounts to the plaintiff and for other reliefs. 4. The plaintiff filed the applications in I.A.Nos. 859 of 2013 and 860 of 2013 seeking for appointment of Advocate Receiver and for Advocate Commissioner. The Trial Court allowed the application in I.A.No.860 of 2013 and appointed an Advocate Commissioner. The Advocate Commissioner also filed his report before the Trial Court. The defendants 2 and 4 have filed their objections to the Advocate Commissioner's report. Thereafter, the defendants 2 and 4 filed an application under section 8(1) of the Arbitration and Conciliation Act, 1996 to refer the parties to the suit to arbitration. For referring the matter for arbitration, the defendants relied upon clause 10 of the partnership deed dated 1.4.2007, which reads as follows: (“Tamil”) The first respondent/plaintiff filed his counter affidavit and stated that the clause mentioned in the partnership deed will not amounts to the arbitration clause and that the suit filed by him is maintainable. The Trial Court after taking into consideration the case of both the parties, dismissed the application. Aggrieved over the same, the defendants 2 and 4 have filed the above Civil Revision Petition 5. The Trial Court after taking into consideration the case of both the parties, dismissed the application. Aggrieved over the same, the defendants 2 and 4 have filed the above Civil Revision Petition 5. Mr.R.Subramanian, learned counsel appearing for the petitioners in support of his contention relied upon a judgment reported in 2015(2) MLJ 380 (Sundaram Finance Limited and another v. T.Thankam) wherein the Hon'ble Supreme Court held that once there is an agreement between the parties to refer the disputes or differences arising out of the agreement to arbitration and in case either party ignoring the terms of the agreement, approaches the civil court and the other party, in terms of the section 8 of the Arbitration Act, moves the court for referring the parties to arbitration before the first statement on the substance of the dispute is filed in view of the peremptory language of section 8 of the Arbitration Act, it is obligatory for the court to refer the parties to arbitration in terms of the agreement. 6. Countering the submission made by the learned counsel appearing for the petitioner, Mr.V.Lakshmi Narayanan, learned counsel for the first respondent/caveator submitted that the trial Court has rightly dismissed the application filed by the petitioners. Further, the learned counsel submitted that when the petitioners/defendants 2 and 4 filed their objections to the Advocate Commissioner's report and co-operating with the Advocate Commissioner, now cannot turn around and take a stand that suit field by the first respondent/plaintiff is not maintainable. 7. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that in the case of any dispute between the parties to the partnership deed dated 1.4.2007, the dispute have to be settled by Panchyat. In the judgment reported in 2011(5) SCC 532 (Booz Allen and Hamilton Inc. v. Sri Home Finance Limited and others), wherein the Hon'ble Apex court held as follows:- "25.Not only filing of the written statement in a suit, but filing of any statement, application, affidavit by a defendant prior to the filing of the written statement will be construed as “submission of a statement on the substance of the dispute”, if by filing such statement/application/affidavit, the defendant shows his intention to submit himself to the jurisdiction of the court and waives his right to seek reference to arbitration. But filing of a reply by a defendant, to an application for temporary injunction/attachment before judgment/appointment of Receiver, cannot be considered as submission of a statement on the substance of the dispute, as that is done to avoid an interim order being made against him.” 8. In the case on hand, the petitioners already cooperated with the Advocate Commissioner and also filed their objections to the Advocate Commissioner's report. That apart, the petitioners have also filed their counter in I.A.No15 of 2013. According to the learned counsel for the petitioners, the said application was filed by the plaintiff to advance the hearing. 9. The Hon'ble Apex Court 2011(5) SCC 532 (cited supra), held that not only filing of the written statement in a suit, but filing of any statement, application, affidavit by a defendant prior to the filing of the written statement will be construed as “submission of a statement on the substance of the dispute”, if by filing such statement or application or affidavit, the defendant shows his intention to submit himself to the jurisdiction of the court and waives his right to seek reference to arbitration. In the case on hand, as already stated the petitioners have co-operated with the advocate Commissioner and also field his objections to the Advocate Commissioner's report. When the petitioners have submitted the jurisdiction of the Civil Court, they cannot now turn around and take a stand that the dispute have to be referred to arbitration under section 8(1) of the Arbitration and Conciliation Act. 10. Taking into consideration this aspect, the trial court has rightly dismissed the application. Since the facts and circumstances of the present case differs from the judgment relied upon by the learned counsel for the petitioner, the same is not applicable to the present case. Therefore, I do not find any error or irregularity in the order passed by the trial court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.