SANJEEV KUMAR GUPTA Vs. BRIJ MOHAN SAWHNEY

JUDGEMENT

(1.) This civil revision is directed against the order dated 25.04.2015 passed by the learned 1st Additional District Judge, Jammu, dismissing the application of petitioner -defendant, namely, Sanjeev Kumar Gupta filed under Sec. 5 of J & K Arbitration & Conciliation Act, 1997 (hereinafter, for short, the Act) seeking dismissal of the suit. The facts -in -brief are that respondent -plaintiff, namely, Brij Mohan Sawhney through Attorney filed a suit against the petitioner -defendant for rendition of accounts and recovery of his share in the trial court with regard to their partnership firm M/s. Sanjeev Exporters, Ramsoo.

(2.) The contention of learned counsel for petitioner -defendant is that the partnership had already dissolved more than three years before filing of the suit by the respondent -plaintiff. His further contention is that although no name of arbitrator was mentioned in the Partnership Deed, yet there was a specific clause that any dispute arising between the parties with respect to the partnership business would be got adjudicated by arbitration. Thus, it is contended that without resorting to the said clause, the respondent -plaintiff filed a suit against the petitioner -defendant before the trial Court. The petitioner -defendant in view of specific clause of arbitration in the Partnership Deed filed an application under Sec. 5 of the Act before the trial court seeking dismissal of the suit. Learned trial court, however, vide order dated 25.04.2015 dismissed the application on the ground that the petitioner -defendant ought to have filed application under Sec. 8 and not under Sec. 5 of the Act seeking dismissal of the suit being barred by the arbitration clause contained in the Partnership Deed.

(3.) The contention of learned counsel for petitioner -defendant is that Sec. 5 of the Act bars the judicial authority to intervene in the matters where there is an arbitration clause in the agreement, whereas under Sec. 8 of the Act, the reference could be made by the Court, only if there is agreed named arbitrator in the arbitration agreement. Thus, it is contended that the trial court while dismissing the application of petitioner -defendant had not properly understood the import of Ss. 5 and 8 of the Act.