AZIZ Vs. PROTAPADITYA DEBNATH

JUDGEMENT

(1.) This Civil Revisional Application is filed by the petitioner- plaintiff under Article 227 of the Constitution of India challenging Order No. 10 dtd. 18/1/2023 passed by the learned Civil Judge (Junior Division)-I at Port Blair in Other Suit No. 17 of 2022 allowing the application of the opposite party-defendant under Sec. 8 (1) of the Arbitration and Conciliation Act, 1996.

(2.) The brief fact of the case is that the plaintiff-petitioner filed a suit for declaration and permanent injunction claiming declaration in the form of a decree declaring the opposite party- defendant as not a partner in the firm under the name and style of "Havelock Dive Club" which is registered as Other Suit No. 17 of 2022. The opposite party-defendant entered appearance in the suit and filed an application under Sec. 8 (1) of the Arbitration and Conciliation Act, 1996 praying for referring the matter in dispute between the parties to arbitration on the basis of valid arbitration agreement existing between them contained in the deed of partnership. Upon hearing and considering the materials on record, the learned Trial Court allowed such prayer of the opposite party-defendant made in terms of Sec. 8 (1) of the Arbitration and Conciliation Act, 1996.

(3.) Being aggrieved by and dissatisfied with the impugned order passed by the learned Trial Court, the petitioner-plaintiff has preferred the present revisional application. Mr. K.M.B. Jayapal, learned Advocate for the petitioner- plaintiff submitted that though the partnership deed has been registered before the Sub-Registrar, however, the partnership firm has not been registered before the Register of Firms and therefore, the arbitration clause contained in the partnership deed cannot be invoked or acted upon. Referring to Sec. 69 of the Partnership Act, 1932, he submitted that for the reason of non-registration of the partnership firm before the Register of Firms, no suit can be instituted in respect of such partnership by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm or by or on behalf of a firm against any third party before any Civil Court and thus, it goes without saying that the arbitration clause contained in the partnership deed has no existence at all until and unless the said partnership is registered before the Register of Firms. He further submitted that the clause containing for reference to arbitration in the partnership deed is ambiguous and it is settled proposition that if the language of such clause is not couched expressively for reference to arbitration, in that event every dispute cannot be referred to arbitration. To buttress his contention he relied on the decision of Hon'ble Supreme Court passed in Master Tours and Travels versus Chairman, Amarnath Shrine Board and others reported in (2016) 16 SCC 661. In light of his aforesaid submission, he prayed for allowing the revisional application by setting the impugned order of the learned Trial Court under challenge.