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2016 (11) TMI 544
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....llowed the application filed by the defendant under Section 8(1) of 1996 Act. Parties to the suit were referred to the arbitration to settle the dispute as per arbitration agreement. The High Court wide impugned judgment has affirmed the order of Trial Court with observation that parties can press for an early trial. The Revision Petition was disposed of accordingly. Aggrieved against the judgment of High Court, the appellants/plaintiffs have filed this appeal. 3. The brief facts necessary to be noted for deciding this appeal are: (i) Late Ramabhakta had started a business of manufacture and sales of 'Beedi' under the name 'M/s Neo Subhash Beedi Works'. After his demise, his six sons, namely, late M. Narasimha Bhakta, late M. Subhaschandra Bhakta, late M. Prakashchandra Bhakta, late M. Ganesh Bhakta, late M. Gangadhar Bhakta and late M. Ashok Bhakta, constituted the partnership firm. (ii) M. Narsimha Bhakta retired from the firm as per the release deed dated 30.06.1986 and the remaining partners continued with the firm. (iii) M.Prakashchandra Bhakta died on 20.03.1995 and as per his Will, his minor son Master M. Vinayaka Bhakta was admi....
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....e counter affidavit to the application I.A. No. IV was also filed by the Plaintiff. The Learned District Judge heard the I.A.No.IV as well as the objections raised by the Plaintiff and by an order dated 27.05.2014, pass the following order: "I.A.No. IV filed under Section 8(1) of the Arbitration and Conciliation Act, 1996 by the defendants is allowed. The parties to the suit are referred to the Arbitration to settle their disputes and differences, in view of the Arbitration Agreement. The suit of the plaintiffs stands disposed off accordingly." 8. Learned Counsel appearing for appellants in support of this appeal raised following submissions: (i) The application I.A.No.IV of 2014 praying for referring the matter to arbitration was not accompanied by the original retirement deed dated 25.07.2005 and partnership deed dated 05.04.2006, hence the application was liable to be dismissed under Section 8(2) and Learned District Judge committed error in allowing the application. According to Section 8(2) of the Act, it is mandatory to file the original arbitration agreement or a duly certified copy thereof along with the application seeking reference to the ....
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....deed along with application I.A.No. IV dated 09.05.2014 entailed dismissal of the application as per section 8(2) of 1996 Act. (2) Whether the fact that all the parties to the suit being not parties to the retirement deed/partnership deed, the Court was not entitled to make the reference relying on arbitration agreement. (3) Whether dispute pertaining to unregistered partnership deed cannot be referred to an arbitration despite there being arbitration agreement in the deed of retirement/partnership deed. ISSUE NO.(1) 12. Two facts which emerged from record in this respect need to be noted. Firstly, the plaintiffs in their plaint of O.S.No. 5 of 2014 have referred to and admitted the retirement deed dated 25.07.2005 and partnership deed dated 05.04.2006 in para 5 of the plaint. The plaintiffs themselves have filed the photocopies of deed of retirement dated 25.07.2005 as the document no. 6 in the list and photocopies of partnership deed dated 05.04..2006 as document no. 7 as have been noted in para 23 of the District Judge judgment. Further, although initially the application filed by Defendant I.A.No. IV dated 09.05.2014 was not accompanied by copy of retirement deed....
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....declaration of the deed to be void which could have been granted only by the Civil Court, the dispute could not be referred. Defendant filed Civil Revision which was allowed by the High Court. One of the submissions made before this court was that as per subsection (2) of Section (8), the application could not have entertained unless it was accompanied by original arbitration agreement or duly certified copy thereof. This court held that there is no whisper in the petition that the original agreement or a duly certified copy is being filed. There was non compliance of Section 8(2). Hence the reference could not have been made. Following was stated by this court in paragraph 19: " 19. There is no whisper in the petition dated 28.02.2005 that the original arbitration agreement or a duly certified copy thereof is being filed along with the application. Therefore, there was a clear noncompliance with subsection (2) of Section 8 of the 1996 Act which is a mandatory provision and the dispute could not have been referred to arbitration. Learned counsel for the respondent has submitted that a copy of partnership deed was on the record of the case. However, in order to satisfy the ....
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...." 1. To bear in mind or consider, esp, to give judicial consideration to (the Court then entertained motions for continuance). 2. To amuse or please. 3. To receive(a person) as a guest or provide hospitality to (a person). The expression 'entertain' means to 'admit a thing for consideration' and when a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decision might be." The Blacks Law Dictionary also defines this word 'entertain' as follows: "To bear in mind or consider;esp., to give judicial consideration to <the court then entertained motions for continuance>" 19. In 1971 (3) SCC 124, Hindusthan Commercial Bank Ltd. Vs. Punnu Sahu (Dead) through Legal Representatives, the word 'entertained' came for consideration as occurring in Order 21, Rule 90, Proviso of Civil procedure Court. Para 2 of the Judgment notices the amended Proviso which was to the following effect: "2. The amended proviso with which we are concerned in this appeal reads ....
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....contention of the appellant that Clause (b) of the proviso did not apply to the present proceedings." 20. Another relevant judgment is 1998 (1) SCC 732, Martin and Harris Ltd. Vs. VIth Additional District Judge and others. In the above case Section 21(1) proviso of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (13 of 1972) word 'entertained' came for consideration. The proviso to Section 21(1) was to the following effect: " 8. Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of the Act, no application shall be entertained on the grounds, mentioned in clause(a) unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years." In the above case, the application under Section 21(1) was filed by the landlord before expiry of period of three years from the date of purchase. It was held by this Court that word ....
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....ahu. In Lakshmiratan Engineering this Court was concerned with the meaning of the word 'entertain' mentioned in the proviso to Section 9 of the U.P. Sales Tax Act, 1948. Hidayatullah,J., speaking for the Court observed in the light of the statutory scheme of Section 9 of the said Act that the direction to the Court in the proviso to Section 9 was to the effect that the Court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. In the case of Hindusthan Commercial Bank the term 'entertain' as found in the proviso to Order XXI Rule 90 Code of Civil Procedure(CPC) fell for consideration of the Court. Hegde,J., speaking for a Bench of two learned Judges of this Court in this connection observed that the term 'entertain' in the said provision means 'to adjudicate upon' or 'to proceed to consider on merits' and did not mean 'initiation of proceeding '. The aforesaid decisions, in our view, clearly show that when the question of entertaining an application for giving relief to a party arises and when such application is based on any grounds on which such appl....
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....he retirement deed. In paragraph 23 of the judgment, Learned District Judge had returned the following findings: "...therefore, the plaintiff no. 1 represented by his mother and next friend Smt. Usha A. Bhakta is a party to the Retirement Deed and plaintiffs 2 and 3 are claiming their rights through one of the partner late Shri Gangadhar Bhakta, who was also a party to the Retirement Deed. The Defendants 1 to 5 are also the parties to this Retirement Deed. Therefore, except defendant No. 6 all others are either personally or through the persons from whom they are claiming the right are parties to the Deed of Retirement Deed dated 25.07.2005..." Thus it was only defendant no. 6 who was not party to the retirement deed or partnership deed. Both 5th and 6th defendants are issues of late M. Prakashchandra Bhakta. 25. Learned Counsel for the respondents have submitted that it was case of the plaintiffs themselves that by virtue of Will executed by M.Prakashchandra Bhakta it was only defendant no. 5 who became entitled to benefits of partnership and defendant no. 6 was not given any share. 26. The plaintiffs admittedly are parties to the arbitration agreement as noted a....