9911796707
TMI Blog2003 (4) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 500 of 2001. 2. Appellant and respondent Nos. 1 and 2 entered into a partnership agreement on 30th April, 1992 for carrying on business in the name and style of M/s. IIetali Construction Company to develop the land belonging to Ms. Jaykirti Mehta who brought the said land as her capital contribution. Land was valued at Rs. 65,51,000. A Plan for construction of building was submitted in April 1992 and on 20-1-1993, commencement certificate was issued. It is submitted that till issue of commencement certificate, appellant's contribution in the said partnership was to the extent of Rs. 1,25,00,000 as capital contribution. By award dated 11-3-1993, Ms. Jaykirti Mehta was directed to stand retired from the partnership firm. It was agreed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of M/s. West End Gymkhana Ltd. Respondent No. 1 also took out a notice of motion No. 1576 of 2000 for various interim reliefs. 4. On the same day, appellant filed an application under section 8 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act'). That application was kept for hearing along with the notice of motion. 5. Subsequently, respondent No. 1 filed fresh suit bearing No. 2812 of 2001 for dissolution of the suit firm, accounts and other reliefs including the relief for setting aside the transfer of suit flats in favour of various defendants. The respondent withdrew the suit filed on 9th May, 2000. 6. The appellant filed an arbitration petition No. 500 of 2001 under section 8 of the Act. That ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shekhar Naphade appearing for the appellant submitted that under section 8 of the Act, the Court was required to refer the dispute arising because of the dissolution of the partnership to the arbitrator as contemplated by the arbitration clause. He further submitted that in any case there is no bar in referring the dispute which arises between the appellant and respondent Nos. 1 and 2 who are bound by the agreement to the arbitrator as envisaged in the partnership deed. He next contended that if the interpretation given by the High Court is accepted, arbitration clause could be defeated by an interested party by adding some reliefs which are not covered by the arbitration clause or by adding a few parties who are not bound by the arbitrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." 11. For interpretation of section 8, section 5 would have no bearing because it only contemplates that in the matters governed by Part-I of the Act, Judicial authority shall not intervene except where so provided in the Act. Except section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to arbitration and the Court may refer the same to arbitration provided that the same can be separated from the rest of the subject- matter of the suit. Section also provided that the suit would continue so far as it related to parties who have not joined in such application. 14. The relevant language used in section 8 is-"in a matter which is the subject-matter of an arbitration agreement". Court is required to refer the parties to arbitration. Therefore, the suit should be in respect of 'a matter' which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced - "as to a matter" which lies outside the arbitration agreement and is also between some of the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibility of conflicting judgments and orders by two different forums. 17. Reliance was placed on section 89 CPC in support of the argument that the matter should have been referred to arbitration. In our view, section 89 CPC cannot be resorted to for interpreting section 8 of the Act as it stands on a different footing and it would be applicable even in cases where there is no arbitration agreement for referring the dispute for arbitration. Further, for that purpose, the Court has to apply its mind to the condition contemplated under section 89 CPC and even if application under section 8 of the Act is rejected, the Court is required to follow the procedure prescribed under the said section. 18. Lastly, considering the language used in sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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