SUKUMAR GHOSH Vs. TULSI CHARAN GHOSH

JUDGEMENT

(1.) AN order dated April 10, 1979, passed by the learned Subordinate Judge, 2nd Court, Howrah, is the subject matter of challenge in these two revisional applications which are being heard on contest by the opposite party. By the order impugned the learned Subordinate Judge dismissed an application under Section 151 of the Code of Civil Procedure read with Order 9 Rule 13 thereof filed in Miscellaneous Case No. 15 of 1972 and an objection under Section 47 of the Code of Civil Procedure filed in Title Execution Case No. 23 of 1973 which objection was registered as Miscellaneous Case No. 43 of 1973. Facts leading to the passing of the impugned order are not in dispute and may be set out briefly as follows. On June 24, 1970, the petitioner Sukumar Ghosh filed Title Suit No. 31 of 1970 in the 2nd Court of the learned Subordinate Judge, Howrah, praying for a decree for partition and accounts in respect of the suit properties against his brother the opposite party Tulsi Charan Ghosh and his mother Binodini Ghosh. The suit properties were (i) two storeyed residential house being premises Nos. 45 and 45/1, Desapran Sasmal Road, Howrah, (ii) the tenanted land and structures being premises No. 115, Brindaban Mallick Lane, Howrah, (in) some lands in Mouza Kalipur, P. S. Chanditala, District Hooghly, (iv) a stationery business run under the name and style of Messrs. Ghosh and Company at 14/2, Old China-bazar Street, (v) a printing press business run in partnership with a third party Ambarnath Misra under the name and style of Samudrika Press at 41, Desapran Sasmal Road, Howrah, and (vi) other movables and moneys deposited with banks. There is no dispute that even prior to the filing of the aforesaid suit for partition the third party partner Ambarnath Misra had filed in the same very court Title Suit No. 135 of 1970 (renumbered as Title Suit No. 9 of 1971) for dissolution of his partnership with the two brothers Tulsi Charan and Sukumar in respect of the said printing press business.

(2.) THE summons of the partition suit being Title Suit No. 31 of 1970 having been served on Tulsi Charan Ghosh he on July 27, 1970, filed an application under S. 34 of the Arbitration Act for stay of further proceedings of the partition suit. He claimed such a stay on a pleading that in the agreement of partnership relating to the business of Messrs. Ghosh and Company between him and Sukumar Ghosh there is an arbitration clause. That disputes having arisen between the parties they agreed to have such disputes settled through the intervention and arbitration of a reputed local gentleman Shri Anath Nath Banerji. Sukumar Ghosh and his advocate attended the sittings held by Shri Anath Nath Banerji and they duly put their signatures in the minutes of the said arbitration agreeing to resolve all their disputes through such arbitration which amounted to an agreement in writing to have the matters settled through arbitration. In view of that agreement and in view of the fact that the arbitration proceeding was pending between the parties further proceedings in the suit should be stayed.

(3.) BY his order dated October 25, 1971, the learned Subordinate Judge, 2nd Court, Howrah, dismissed the aforesaid application under Section 34 of the Arbitration Act, obviously rejecting the case of Tulsi Charan that there was a further agreement for arbitration apart from the arbitration clause in the partnership.