KISHAN MIMANI Vs. INDU KOCHER

JUDGEMENT

(1.) The instant appeal has been preferred against the judgment and order of learned Single Judge dated 2nd May, 2011, by which the learned Trial Judge has referred all the disputes in the above suit to Arbitration and with this order learned Trial Judge dismissed the suit. The appellants herein filed a suit against the defendant Nos. 1, 2, 3, 4 and making the respondent No. 5 as a party defendant therein claiming that a decree for declaration that the defendants do not have any right, title or interest in respect of the dissolved partnership firm M/s. Bharat Industries and Commercial Corporation including the assets mentioned in paragraph 10 of the plaint; permanent injunction restraining the defendant from claiming any right, title or interest in the property referred to in paragraph 10 above. Defendant Nos. 1, 2 and 3 thereafter filed an application under section 8 of the Arbitration and Conciliation Act, 1996 for referring all the disputes involving in the said suit to Arbitration in terms of the arbitration agreement contained in the deed of partnership dated 23rd December, 1972.

(2.) In the said application the claim for referring the disputes to Arbitration is based on the following summarized fact:

(3.) The plaintiffs contested the said application contending amongst others that said application is neither maintainable in law nor on facts of the present case. The subject-matter of the suit and reliefs claimed therein are beyond the scope of the arbitration agreement contained in the deed of partnership dated 23rd December, 1972. Further, all the parties to the present suit were not parties to the purported arbitration agreement. The applicants-defendants have not made out any claim for being referred to Arbitration. In any event the claim of the petitioner, if any, in respect of the partnership firm namely M/s. Bharat Industries and Commercial Corporation, since dissolved is hopelessly barred by the laws of limitation. The petitioner does not have live claim to go to Arbitration. The arbitration agreement relied upon by the petitioners subsequently stood modified by the agreement dated February 2, 1985, entered into between surviving partners Mohanlal Kocher and the heirs of the deceased partners namely late Mohanlal Maheshwari. Therefore, the said arbitration agreement is no longer subsisting. In any event, the arbitration agreement, if any has become redundant and cannot be enforced. This Court is the competent forum to adjudicate all the issues in the present suit and grant reliefs prayed for. The Arbitral Tribunal would not be competent to adjudicate on the subject-matter of the present suit.