SANJAY SAHA Vs. NANDITA MISRI

JUDGEMENT

(1.) Order No.9 dated November, 30, 2017 passed by learned Civil Judge (Junior Division), Fast Court, Malda, in connection with O.C. Suit No. 141 of 2017, is under challenge in the present Application. Petitioner's case is that plaintiff/opposite party no. 1 herein filed aforesaid suit praying interalia for declaration and permanent injunction and for rendering accounts of partnership against the defendant no. 1/petitioner and other defendant no, 2,3 and 4.

(2.) Upon receipt of summon of the said suit the petitioner and opposite party no. 2,3 and 4 herein appeared in the said suit and on September, 18, 2017, the opposite party no. 2 filed impugned petition before the court below challenging the maintainability of the suit. Opposite party no.2 by filing copy of partnership deed, (wherein clause 18 recorded that in case of any dispute between the parties, the matter shall be referred to the arbitrator), prayed before the court that the suit is not maintainable before the civil court and it shall be referred to the arbitration. On November, 11, 2017 the opposite party no. 1 herein being plaintiff filed written objection against the said petition. It is not in dispute that the partnership firm, in question, is a registered firm in which the opposite party no. 1 happens to be the first part and petitioner herein is second part of the firm. The partnership deed was executed and registered on the basis that the profit and loss will be divided and borne between the parties and not by any third party.

(3.) Mr. Debasis Basu learned counsel appearing on behalf of the petitioner strenuously argued that the partnership deed was entered between the opposite party no. 1 and the petitioner herein and as such opposite party no. 2/defendant No. 2 is a stranger to the deed. Petitioner herein never applied before the court below challenging maintainability of the aforesaid suit. He further submits that by the impugned order dtd. 30/11/2017, learned Trial Court upon hearing the respective parties and relying upon Judgment of Apex Court passed in Branch Manager, Magma leasing and finance Ltd and another Vs. Potluri Madhavilata and another, reported in (2009) 10 SCC 103 and M/s Sundaram Finance Ltd. and another Vs. T. Thankam, reported in (2005) 14 SCC 444 was of the view that the matter should be referred to an arbitrator for proper adjudication of the dispute and accordingly order was made allowing the prayer made by opposite party no. 2, challenging the maintainability of the suit, with further observation that the civil court does not have any jurisdiction to try the said suit. Mr. Basu contended that it is surprising that neither of the parties to the partnership agreement challenged maintainability of the aforesaid suit but on the basis of the application made by opposite party no. 2 with whom the subjected partnership deed was not entered, the court below allowed the said application. He further submitted that opposite party no. 1 filed an application under Sec. 11 of the Arbitration and Conciliation Act 1996 before this High Court, being A.P. No. 378 of 2018. By an order dated July, 24, 2018, this High Court was pleased to allow the said application under Sec. 11 filed by opposite party no. 1 herein and relegated the matter into arbitration interalia upon appointing a sole Arbitrator with consequential directions.