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TMI Blog1964 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... of dispute the matter will be referred for arbitration in accordance with the Indian Arbitration Act." The company alleged that Jagdish Chander Gupta failed to carry out his part of the partnership agreement. After some correspondence, the company wrote to Jagdish Chander Gupta on February 28, 1959 that they had appointed Mr. R. J. Kolah (Advocate O.S.) as their arbitrator and asked Jagdish Chander Gupta either to agree to Mr. Kolah's appointment as sole arbitrator or to appoint his own arbitrator. Jagdish Chander Gupta put off consideration and on March 17, 1959 the company informed Jagdish Chander Gupta that as he had failed to appoint an arbitrator within 15 clear days they were appointing Mr. Kolah as sole arbitrator. Jagdish Chander Gupta disputed this and the company filed on March 28, 1959 an application under s. 8 (2) of the Indian Arbitration Act, 1940 for the appointment of Mr. Kolah or any other person as arbitrator. Jagdish Chander Gupta appeared and objected inter alia to the institution of the petition. Two grounds were urged (i) that s. 8(2) of the Indian Arbitration Act was not applicable as it was not expressly provided in the arbitration clause quoted above th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not apply- (a) to firms or to partners in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by notification under section 56, this Chapter does not apply, or (b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882, or outside the Presidencytowns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim 'Me section, speaking generally, bars certain suits and proceedings as a consequence of non-registration of firms. Sub-s. (1) prohibits the institution of a suit between partners inter se or between partners and the firm for the purpose of .enforcing a right arising from a contract or conferred by the Partnership Act unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm. Sub-s. (2) similarly prohibits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighth section of the Arbitration Act has its genesis in the arbitration clause, because without an agreement to refer the matter to arbitration that section cannot possibly be invoked. Since the arbitration clause is a part of the agreement constituting the partnership it is obvious that the proceeding which is before the court is to enforce a right which arises from a contract. Whether we view the contract between the parties as ;a whole or view only the clause about arbitration, it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the . agreement of the parties. The words of s. 69(3) "a right arising from a contract" are in either sense sufficient to cover the present matter. It remains, however, to consider whether by reason of the fact that the words "other proceeding" stand opposed to the words "a claim of set-off" any limitation in their eaning was contemplated. It is on this aspect of the case that the learned Judges have seriously differed. When in a statute particular classes are mentioned by name and then are followed by general words, the general words are sometimes construed ejusdem generis, i.e. limited to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-fetched things when it spoke of "other proceeding" ejusdem generis with a claim of set-off. Mr. Justice Naik asked the question that if all proceedings were to be excluded why was it not considered suffi cient to speak of proceedings along with suits in sub-ss. (1) and (2) instead of framing a separate subsection about proceedings and coupling 'other proceeding,' with 'a the search for the answer in the' scheme of the section itself gives the clue. The section thinks in terms of (a) suits and (b) claims of set-off which are in a sense of the nature of suits and (c) of other proceedings. The section first provides for exclusion of suits in sub-ss. (1) and (2). Then it says that the same ban applies to a claim of set-off and other proceeding to enforce a right arising from a contract. Next it excludes the ban in respect of the right to sue (a) for the dissolution of a firm, (b) for accounts of. a dissolved firm and (c) for the realisation of the property of a dissolved firm. The emphasis in each case is on dissolution of the firm. Then follows a general exclusion of the section. The fourth sub-section says that the section as a whole, is not to apply to firms or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Arbitration Act arises from the contract between the parties and is a part of it. In Jamal v. Firm Umar Haji Karim the bar of s. 69(3) was claimed during the execution of a consent decree and was disallowed. Grille C. J. observed that the expression 'other proceeding' indicated something which was 'sui generis of a claim of set-off'. If the partners of an unregistered firm. go to court without either asking for a dissolution of the firm or dissolving it themselves and enter into an agreement and compose their differences it is possible to say that the enforcement of the consent decree is no more than the enforcement of a right arising from a contract and is within the ban. It is, however, not necessary to decide this point here. in Ram Lal Harnam Das v. Pal Krishan and others() it was expressly pointed out that the expression 'other proceeding' in the third sub-section applied to proceedings of the nature of a claim of set-off and nothing else. This case cannot be said to interpret the sub-section correctly. Similarly, Mahendra v. Gurdeyal, which lays down that s. 69 does not bar a partner of an unregistered partnership firm from applying to the court u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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