RAJ KUMAR SHARMA Vs. PRASANTA KUMAR CHANDRA

JUDGEMENT

(1.) The present revisional application is directed against the order being No. 23 dated 25.07.2006 passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta in Misc. Case No.169/2006 rejecting the petitioner's application for dismissal of the application under Section 9 of the Arbitration & Conciliation Act, 1997 due to its non-maintainability in view of the embargo imposed by Section 69 of the Partnership Act.

(2.) The circumstances leading to the above application are that the petitioner and O. P. Nos.1 & 2 formed a partnership firm in the name & style of M/s. Akash Ganga Construction by a deed dated 01.10.2003. The said firm is an unregistered one. On the application of O. P. Nos. 1 & 2 under Section 9 of the Arbitration & Conciliation Act, 1997, hereinafter referred to as the said Act, for an injunction restraining the petitioner from making any construction at premises No. 22 & 22/1, Goa Bagan Street, Calcutta-700 006 and from disposing of, transferring and/or entering into an agreement with 'anyone without their consent, the trial Court passed an ex parte order of status quo on 30.01.2006 in respect of the disputed property which was subsequently extended. By an application dated 19.07.2006 the petitioner challenged the maintainability of the said application under Section 9 of the said Act in view of Section 69 of the Indian Partnership Act as the partnership firm is unregistered which was disposed of by the impugned order.

(3.) Mr. Dey, learned Counsel for the petitioner, contended that since the partnership firm is unregistered, the said application under Section 9 of the said Act falling under the purview of "other proceeding" being barred is not maintainable in view of sub-section (3) of Section 69 of the Indian Partnership Act. On the other hand, Mr. Chakraborty, learned Counsel for the O.Ps., relying upon the case of Firm Ashok Traders v.Gurumukh Das Saluja, reported in 2004 (4) SBR 299 submitted that the relief sought for in an application under Section 9 of the said Act is neither in a suit nor a right arising from a contract, but a right arising from a partnership deed or conferred by the Partnership Act is being enforced in the arbitral tribunal where the Court under Section 9 of the said Act is only formulating interim measure for protection of the right under adjudication, and as such Section 69 of the Partnership Act is not a bar on the right of a party to an arbitration clause to file an application under Section 9 of the said Act.