ESS VEE TRADERS Vs. AMBUJA CEMENT RAJASTHAN LIMITED

JUDGEMENT

(1.) This is an application for appointment of an Arbitral Tribunal to adjudicate the purported disputes between the petitioner No. 1 (firm) and the respondent. This application is styled as an application under Section 11 (4) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the said Act'). However, it is being treated as an application under Section 11(6) of the said Act inasmuch as there purports to be an arbitration agreement between the parties and a procedure for appointing the arbitrator has been provided for. Therefore, Section 11(4) of the said Act would not apply and this application has to be dealt with in terms of the provisions of Section 11(6) thereof.

(2.) The respondent has raised a preliminary issue with regard to the maintainability of this petition. It is the contention of the learned Counsel appearing for the respondent that the petitioner No. 1 is a partnership firm which was not registered on the date of institution of the present petition. The petitioner Nos. 2 & 3 are the partners of the said firm. According to the learned Counsel for the respondent, in view of the provisions of Section 69 of the Indian Partnership Act, 1932, the effect of non-registration of the petitioner No. 1 firm would be that it would be barred from instituting the present petition. The learned Counsel for the petitioners contended that while it is true that the firm was not registered at the time of institution ofthe present petition, i.e., on 18.8.2003 (filing)/22.8.2003 (on refiling), the firm was subsequently registered on 9.11.2005 and, as of now, the firm is a registered firm and, therefore, the bar of Section 69 would not apply. It was further contended by the learned Counsel for the petitioner that the bar of Section 69 would, in any event, not apply to the present proceedings.

(3.) The brief facts giving rise to the present petition are that the petitioner No.1 (the partnership firm) entered into a contract dated 25.9.1998 with the respondent which was earlier running us business under the name and style of DLF Cement Limited. By virtue ofthe said contract, the respondent had appointed the petitioner No. 1 as the C&F agent for the sale of cement for the Jalandhar Depot for a period of two years. It is further the case of the petitioner that the said contract contained an arbitration clause which reads as under: