Gauhati High Court
Suresh Jalan And Anr vs Shanti Devi Jalan @ Shanti Jalan And Anr on 26 June, 2020
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
Page No.# 1/6
GAHC010090242020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 56/2020
1:SURESH JALAN AND ANR.
KARTA OF MP JALAN HUF, S/O- LT. LAXMI NARAYAN JALAN, R/O- M.P.
JALAN, HIJUGURI, OPP. HIJUGURI TOWN OUT POST, P.O. AND P.S. AND
DIST.- TINSUKIA, ASSAM, PIN- 786125
2: RAJESH JALAN
S/O- LT. LAXMI NARAYAN JALAN
R/O- M.P. JALAN
HIJUGURI
OPP. HIJUGURI TOWN OUT POST
P.O. AND P.S. AND DIST.- TINSUKIA
ASSAM
PIN- 78612
VERSUS
1:SHANTI DEVI JALAN @ SHANTI JALAN AND ANR.
W/O- LT. LAXMI NARAYAN JALAN, C/O DR. PANKAJ GOEL, R/O- PARBOTIA
FEEDER ROAD, IN FRONT OF A.R.WINE, P.O. AND P.S. AND DIST.-
TINSUKIA, ASSAM, PIN- 786125
2:THE BRANCH MANAGER
STATE BANK OF INDIA
HIJUGURI BRANCH
P.O. AND P.S. TINSUKIA
DIST.- TINSUKIA
ASSAM
PIN- 78612
Advocate for the Petitioner : MR G RAHUL
Advocate for the Respondent : MR. S ISLAM
Page No.# 2/6
BEFORE
THE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
26.06.2020 Heard Mr. G. Rahul, the learned counsel for the petitioner. Also heard Mr. P. K. Roychoudhury, the learned counsel for the Caveator, respondent No. 1.
The petitioner No. 2 and the respondent No. 1 are running a petrol pump, M/S MP Jalan under the Indian Oil Corporation Limited (IOC Ltd.) on partnership basis. The petitioner No. 1 is the Karta the HUF of MP Jalan wherein the petitioner No. 2 and the respondent No. 1 along with other sons of Lt. Laxmi Narayan Jalan are the coparceners. The partnership deed was executed on 23.04.2012 between the petitioner No. 2 and the respondent No. 1 for operation of the petrol pump. As per the said deed of partnership a bank account is to be opened in the name of partnership firm and shall be operated by the partner of the first part or the partner of the second part severally or by such other person or persons as may be mutually decided and agreed upon by the said partners from time to time. The petitioner No. 2 being the first partner used to look after and manage the entire business of the firm and operated the partnership bank account for making payment to the supplier of petroleum products, creditors and employees etc. On 24.02.2020, the respondent No. 2, Branch Manager of SBI, Hijuguri Branch served a letter on the petitioner No. 2 informing that the respondent No. 1 partner of M/S M. P.Jalan requested the bank to stop the debit in the said account with immediate effect and so they put the account on hold. The petitioner No. 2 informed the respondent No. 2 that he as the first partner was empowered to operate the account and requested to re-active the debit facility of the said account which was not considered following which Title Suit No. 23/2020 was filed in the court of learned Civil Judge, at Tinsukia by the petitioners as plaintiffs against the defendant respondents No. 1 and 2 Page No.# 3/6 seeking for the following relief:-
"(a) For declaration that the letter dated 24.02.2020 issued by the Defendant No. 1 is without any basis and as such bad in law and liable to be cancelled;
(b) For declaration that the letter dated 24.02.2020 issued by the Defendant No. 2, putting the account No. 31520661470 on hold on the basis of the letter dated 24.02.2020 of the defendant No. 1 is bad in law and is liable to be cancelled;
(c) For declaration that the defendant No. 1 has no right to interfere in operation of the bank account of the firm by the First Partner - plaintiff No. 2;
(d) For granting Permanent Injunction restraining the Defendant No. 1 from interfering in operation of the bank account of the firm by the plaintiff No. 2.
(e) For granting Permanent Injunction restraining the Defendant No. 2 from giving effect of the order of hold communicated, vide letter dated 24.02.2020;
(f) For granting ex-parte ad-interim temporary injunction in light of the prayer made in para 26(c) & (d) above;
(g) Cost of the suit.
(h) Any other relief/relief(s) to which the plaintiff is entitled to under the law, equity and justice."
Along with the said suit, Misc (J) Case No. 61/2020 was also filed under order XXXIX Rule 1 and 2 of the CPC seeking for the following reliefs:-
"It is, therefore, prayed that your Honour may be pleased to grant ex-parte ad-interim, temporary injunction restraining the Opp. Party No. 1 from interfering in operation of the bank account of the firm by the petitioner No. 2 and also restraining the Opp. Party No. 2 from giving effect of the order of hold communicated, vide letter dated 24.02.2020, till disposal of this case and to show cause as to why the ad-interim temporary injunction order shall not be made absolute till disposal of the suit.
And further considering the urgency of the matter, the ad-interim temporary injunction order may be granted ex-parte till disposal of this petition for the ends of justice".
The respondent No. 1 entered appearance through the learned counsel one Sri Brijesh Page No.# 4/6 Mishra. The said Advocate, Sri Brijesh Mishra filed two applications under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 both in Title Suit No. 23/2020 and Misc.(J) Case No. 61/2020. The said two applications were registered as Misc.(J) Case No. 71/2020 in Misc. (J) Case No. 61/2020 and Misc. (J) Case No. 92/2020 in Title Suit No. 23/2020. In the said petitions, it is stated that the petitioner No. 1 being the eldest male member of the family became the Karta of M. P. Jalan HUF and the other coparceners executed the deed of declaration dated 29.10.2012. In the said registered declaration dated 29.10.2012 paragraph 8 stipulates that in case of any dispute as to the interpretation of the declaration the matter shall be referred to Sri Ramjeevan Sureka, son of Late Dhanraj Sureka of Chamber Road, Tinsukia and the clarification put forward by him shall be final and binding on all the signatories of the declation. It was further stated in the said application that three of the coparceners in view of the family dispute which arose much before the month of November, 2019 had approached the said arbitrator Sri Ramjeevan Sureka for resolving the dispute within the family. Accordingly, the respondent No. 1 through her advocate sought for referring the dispute as projected in the suit to the appropriate forum of arbitration.
The petitioner objected by filing their written objection thereby stating that the petition is not maintainable under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1966. It was specifically mentioned that M/S M. P. Jalan is a partnership firm created by an Agreement with the knowledge and consent of all the coparceners of MP Malan HUF. Not only partners but the said partnership firm is governed by the Indian Partnership Act, 1932. Accordingly a specific denial was made in respect of the para 8 of the deed of declaration and in respect of an arbitration proceeding being in existence amongst the coparceners in terms of clause 8 of the declaration.
The learned court vide the impugned order dated 02.06.2020 took both the Misc.(J) Case No. 71/2020 arising out of Misc.(J) Case No. 61/2020 and Misc. (J) Case No. 92/2020 arising out of Title Suit No. 23/2020 and allowed the petition thereby holding as follows:-
"Hence, considering the above discussions and observations and since it is found that the Clause-14 in the partnership deed dated 23.04.2012 (document No. 3 of the plaintiffs) is a valid arbitration clause/agreement between the parties i.e. the petitioner/defendant No. 1 and Page No.# 5/6 the OP/plaintiff No. 2, who are the partners of the partnership Firm M/S. M. P. Jalan and also considering the mandatory provisions contained U/S 8(1) of the Arbitration and Conciliation Act, 1996, the prayer of the petitioner/defendant No. 1 to refer the parties to arbitration stands allowed and accordingly, the parties to the instant suit are referred to arbitration."
On perusal of the impugned order, at this stage, I am satisfied that the learned court below wrongly exercised its jurisdiction inasmuch as the petition purportedly filed under Section 8 of the Arbitration and Conciliation Act, 1996, does not speak of the deed of partnership between the petitioner No. 2 and respondent No. 1 nor about the arbitration clause in the partnership deed. Further the requirement of section 8 of the Arbitration and Conciliation Act, 1996, as stipulated in the Section 8(2) is not followed inasmuch as the said petition was devoid of any partnership deed annexed to it. Even then the learned court below merely on the oral submission of the learned counsel for the respondent No. 1 took note of the partnership deed along with the arbitration clause and finally the learned court below hold as hereinabove stated. Further the respondent No. 1 did not express as to her intent for submission to the jurisdiction of the civil court or to the arbitration forum as the petition was not filed by her. The verification of the statements in the petition were made by the advocate.
In fact the petitions under Section 8 of the Arbitration and Conciliation Act, 1996 are totally silent in respect of any arbitration clause of the partnership deed. Accordingly, prima facie, I am satisfied that there is a case on behalf of the petitioner which is required to be heard.
Let noticed be issued.
The petitioner shall take steps on all the respondents except respondent No. 1 within a period of one week from today both by way of registered post with A/D and usual process. No further notice is required to be served on the respondent No. 1 as she is represented by the learned counsel Mr. P. K. Roychoudhury.
Notice is made returnable after four weeks preferably on 20.07.2020.
Consequently, the operation of the impugned order dated 02.06.2020 passed in Misc. (J) Case No. 71/2020 arising out of Misc.(J) Case No. 61/2020 and Misc. (J) Case No. Page No.# 6/6 92/2020 arising out of Title Suit No. 23/2020 and all other consequential orders are stayed until further order.
JUDGE Comparing Assistant