MANOJ RANJAN PATNAIK Vs. SANGRAM KESHARI PATNAIK

JUDGEMENT

(1.) -The present petition is under Order 47, Rule 1, Civil Procedure Code for review of the Judgment of this court dated 19.5.1995 passed in Misc. Appeal Nos. 631 and 632 of 1992.

(2.) Case of the parties is, both parties in the year 1974 formed an unregistered Partnership firm in the name and style 'M/s Madhuban' Same was reconstituted once in 1984 and then on 1.10.1986 in which plaintiffs 1 to 4 and defendants 1 to 4 were partners. In the year 1990 because of dissension among the partners, defendant No. 1 who was Managing -partner of the firm dissolved the partnership firm by notice dated 22.10.1990 purported to be one under Section 143 of the Indian Partnership Act stating that such dissolution would take effect from 1.11.1990.

(3.) In order to settle the dispute and apportionment of the profit and loss the parties referred the matter before two Arbitrators, but plaintiff No 4 in the present suit did not give any consent for the appointment of two arbitrators since according to him Clause (13) of the unregistered partnership deed dated 1.10.1986 clearly stipulated that the dispute pertaining to partnership business was to be referred to a local Arbitrator with consent of all parties Plaintiff No. 4 therefore filed a suit under Section 8(1) of the India Arbitration Act in the court of the learned civil Judge (Senior Division). Bhubaneswar. In that suit plaintiff prayed for injunction to restrain the defendants not to carry on any business in the name of the partnership nor with the partnership fund. Since partnership was in existence, he claimed that the assets of the partnership was to be equally distributed among the members. Learned Subordinate Judge by order dated 18.2.1992 granted an ad interim injunction against the defendant from proceeding with the arbitration case. Defendants challenged this order before the Additional District Judge, Bhubaneswar in Misc Appeal No. 15 of 1992 Learned Additional District Judge allowed the appeal, set aside the order of the Subordinate Judge According to the plaintiff, learned Subordinate Judge gave a finding in the appeal that the proceeding under Section 8(1} of the Arbitration Act was not maintainable, since the partnership was an unregistered one and Section 69 of the Indian Partnership Act bars an application under Section 8(2) of the Act.