Judgment · High Court

Heard Shri S.D. Deshpande, Advocate for the applicants and Shri J.P. Pendsey, Advocate for the non-applicant. The admitted facts are, there was earlier a Regular Civil Suit between parties. Said RCS No.1429 of 1993 was filed by present applicants against the present non-applicant and in it objection to the jurisdiction of Civil Court was raised by filing Exh. 12 contending that Civil Court lacked jurisdiction as the firm in relation to which relief was sought for, was not a registered firm and partners were not mentioned in the Register of Firms. On 3.5.2001, 5th Joint Civil Judge, Junior Division, Nagpur, upheld said objection and dismissed the suit. The other objection that in any case in partnership deed there was an arbitration clause was also accepted by that Court. The said 2 order dismissing the suit for want of jurisdiction was then challenged by present applicants by filing Regular Civil Appeal No. 329 of 2001 and 3rd Ad-hoc Additional District Judge, Nagpur, has maintained said order. Thereafter these proceedings have been filed after issuing notice dated 24.09.2006, seeking appointment of Arbitrator under the Arbitration & Conciliation Act, 1996, (hereinafter referred to as the Arbitration Act). Shri Deshpande, Advocate, contends that firm was already registered and only one partner had retired, therefore, there was no question of firm being re-registered again. He further points out that notice has been served in accordance with law and, therefore, the Arbitrator under Section 11(6) of the Arbitration Act, needs to be appointed. Shri Pendsey, Advocate, on the other hand, contends that earlier there was six partners and in reconstituted firm, there were only five partners. He states that change has not been notified or in any case reconstituted firm has not been registered. He, therefore, states that power under Section 69 of Indian Partnership Act, 1932, is also applicable in relation to arbitration proceedings. His second contention is that the suit raising the dispute was filed in the year 1993 itself, i.e. prior to 3 coming into force of Arbitration & Conciliation Act, 1996, and hence as the date of cause of action is already crystallized, the arbitration, if any, will be regulated in terms of Section 20 of Arbitration Act,

#1940. He states that merely because new Act has come into force, the applicants cannot move such an application. I have perused the order of 3rd Ad-hoc Additional District Judge, Nagpur, dated 5.8.2006. It is apparent that the suit was dismissed because of bar under Section 69 of Indian Partnership Act, 1932, and also because of availability of arbitration agreement between the parties vide clause 14 of the Partnership Agreement. The said findings have attained finality. The contention that five persons are continuing with the same registration cannot be accepted in these circumstances. It is an admitted position on record that the Deed of Amendment and Deed of Retirement have been entered into between the partners of registered firm on 30.09.1987 and said Deed of Amendment and Deed of Retirement is not registered with the Registrar of Firms. The cause of action also stands regulated by the old Act. I am, therefore, not in a position to appoint any Arbitrator under Section 11(6) of the 4 Arbitration Act. Misc. Civil Application is, therefore, rejected. However, there shall be no order as to costs. *GS. JUDGE