NITYA KUMAR CHATTERJEE Vs. SUKHENDU CHANDRA

JUDGEMENT

(1.) THE opposite party instituted a suit in the Third Court of Subordinate Judge, Ali-pore on March 24, 1975 registered as Title Suit No. 59 of 1975 for a decree of dissolution of partnership of the business called "United Syndicate" carried on by the parties and for accounts, for appointment of a Commissioner for accounts and of Receiver for running partnership business, day to day administration thereof and for collection of assets. THE allegations were in short that the defaulting partner, who is the defendant in the suit and the petitioner before us, had been committing serious breaches of agreement of partnership which had been set out in the paragraph 9 of the plaint. It was submitted that as by reason of his conduct it had not been practicable for the plaintiff to carry on the partnership business, it was just and equitable that the partnership should be dissolved.

(2.) AS the notice of the suit was served on the defendant he filed an application on 7th April, 1975 not verified by affidavit, stating that under the terms of the written partnership agreement all disputes arising out of the partnership should be referred to the Arbitration. Accordingly the Court had no jurisdiction to entertain the suit which should be stayed. Thereafter the petitioner filed another application on April, 18, 1975, which was also not verified by affidavit and it was stated therein that "the defendant was and is ready and willing to go to Arbitration." On this application the learned trial Judge passed an order on May 7, 1975 allowing the application and stayed the suit and he further directed that the suit be referred to Arbitration of two Chartered Accountants named in the partnership deed.

(3.) MR. Saktinath Mukherjee learned Advocate appearing for the defendant petitioner submitted that the Appellate Court was wrong in rejecting the application of the defendant on the ground that it was not verified by affidavit. He submitted that this point was not taken in the Trial Court and if there wag any defect in verification, the Court should have given an opportunity to the defendant to take necessary steps to remove the alleged defect instead of rejecting the same on technical ground.