S.K. VIJAYAKUMAR Vs. S.K. RAVIKUMAR

JUDGEMENT

(1.) THESE three miscellaneous first appeals and the civil revision petition are filed against the order dated 12.03.2001 passed by the District Court, Bangalore Rural District, in Arbitration Case No. 1 of 2001. The District Court dismissed the petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') and the interlocutory applications. The applications are, I.A. No. I filed under Section 9(ii)(d) of the Act read with Order 39, Rules 1 and 2 of the CPC for injunction; I.A. No. II under Order 26, Rules 9 and 11 of the CPC for appointment of Commissioner; I.A. No. 111 under Order 40, Rule 1 of the CPC for appointment of receiver and I.A. No. IV under Section 151 of the CPC to dismiss the petition as not maintainable.

(2.) THE brief facts leading to these matters are : the appellant in the appeals and petitioner in the revision petition entered into a partnership venture under the name and style of M/s. Srinivasa Enterprises along with respondents 1 to 6. The partnership firm was running Gopal Theatre situated in Doddabaliapur, which is the schedule property in the petition. The appellant alleges that respondents 1 and 4 were, whole time Managing Partners of the firm but they did not render accounts of the firm and the appellant was kept in dark regarding the affairs of the firm inspite of repeated requests, reminders and demands. It is further alleged that the meetings of the firm were also not convened. In those circumstances, the appellant claims that he dissolved the partnership by issuing notice dated 05.02.2001 and the same was informed to respondents 1 to 6 and called upon them to render accounts and to distribute the assets of the firm. Xerox copies of the notice unserved covers are produced and the postal endorsement thereon is "not claimed". The dissolution of the firm was also notified in Udayavani newspaper dated 08.02.2001. The appellant also invoked the arbitration clause in the partnership deed and proposed to appoint one Mr. Premchand Gupta, an Advocate as the sole Arbitrator for settlement of the dispute. It is alleged that since respondents 1 to 6 made attempts to manipulate the accounts and to dispose of the properties of the partnership firm, the appellant filed the petition on 07.02.2001 in the District Court and the I.A. Nos. I to III, the details of which are narrated in paragraph 1 above (I.A. No. IV was filed by respondents 1 to 3 and 6). It is further alleged that despite knowledge of dissolution of the partnership firm, respondents 1 to 6 sold the schedule property (Gopal Theatre) to the 7th respondent herein. Therefore, relying upon the decision in Nagubai Ammal and Others v. B. Shama Rao and Others, ILR 1956 Mys. 152 : AIR 1956 SC 593 : 1956 SCJ 655 : 1956 SCR 451, it is contended that the alienation of the schedule property during the pendency of the petition is bad in law and Section 52 of the Transfer of Property Act, 1882, is attracted.

(3.) THE learned Counsel for the appellant made, submission with reference to the sale-deed document dated 14.02.2001 to show that the suit schedule immovable property of Gopal Theatre is the property of Srinivasa Enterprises and further contended relying upon the decision of the Apex Court in the case of Ashok Traders and Another v. Gurumukh Das Saluja and Others, 2004(1) R.C.R.(Civil) 725 : AIR 2004 SC 1433 : (2004)3 SCC 155, that the bar indicated in Section 69 of the Partnership Act does not affect the maintainability of an application under Section 9 of the Act and also placed reliance upon the decision of the Supreme Court in Kamal Pushpa Enterprises v. D.R. Construction Company, 2000(4) R.C.R.(Civil) 75 : AIR 2000 SC 2676 : (2000)6 SCC 659 : 2000(4) ICC 271 (SC), which is referred in Ashok Traders case. The Apex Court after referring to its earlier decisions namely, Haldiram Bhujiawala and Another v. Anand Kumar Deepak Kumar and Another, AIR 2000 SC 1287 : (2000)3 SCC 250 : JT 2000(2) SC 596; Raptakos Brett and Company Limited v. Ganesh Property, 1998(4) R.C.R.(Civil) 208 : 1998(2) R.C.R.(Rent) 353 : AIR 1998 SC 3085 : (1998)7 SCC 184 : JT 1998(6) SC 289; Satish Kumar and Others v. Surinder Kumar and Others, AIR 1970 SC 833 : (1969)2 SCR 244 : (1970)1 SCJ 522; Jagdish Chandra Gupta's case and J. Belli Gowder v. Joghi Gowder and Another, AIR 1951 Madras 683 : (1950)2 MU 639, has held that the non- registration of the partnership firm as provided under Section 69(3) is not attracted to the case to file a petition under Section 9 and seek for an interim order in respect of the property of the partnership has been extensively discussed by the Supreme Court in support of the contention that the prohibition contained in Section 69 in respect of instituting the proceedings to enforce a right arising from a contract in any Court by an unregistered firm, it had no application to the proceedings before an Arbitrator and that too when the reference of the Arbitrator was at the instance of the appellant itself and further the Supreme Court has held that if the bar engrafted in Section 69 is absolute in its terms, it is destructive and every right arising under the contract itself and not confined merely to enforcement of a right arising from a contract by instituting suit or other proceedings in Court only. The aforesaid decision has been, referred to by the later judgment of the Supreme Court in Ashok Traders case, while dealing with the maintainability of the proceedings at paragraph 14 after referring to the Constitution Bench decision in Jagdish Chandra Gupta's case and also M/s. Sundaram Finance Limited v. M/s. NEPC India Limited, 1999(1) R.C.R.(Civil) 580 : AIR 1999 SC 565 : (1999)2 SCC 479 and M/s. Shreeram Finance Corporation v. Yasin Khan and Others, AIR 1989 SC 1769 : (1989)3 SCC 476, with reference to Section 20 of the Arbitration Act, 1940 which is now repealed. The Apex Court in this case preferred to take the view as has been expressed in Kamal Pushpa Enterprises that the bar under Section 69 of the Partnership Act is not applicable at the stage of enforcement of award whereby the rights of the parties crystalise and what is now being enforced is not any right arising from an objectionable contract. Therefore, the learned Counsel for the appellant submits that the evidence and reasons recorded placing reliance upon the decision of the Supreme Court in the case of Jagdish Chandra Gupta's case holding that petition under Section 9 is not maintainable in view of the bar contained in Section 69(3) of the Partnership Act applicable to Section 20 of the repealed Arbitration Act, is vitiated on account of error in law. Therefore, the learned Counsel requested this Court to set aside the order impugned in the appeal and allow the petition and grant interim reliefs as prayed in the applications.