Gauhati High Court
Page No.# 1/7 vs Shanti Devi Jalan @ Shanti Jalan And Anr on 6 September, 2022
Page No.# 1/7
GAHC010090242020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/56/2020
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
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
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BEFORE
THE HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
06.09.2020 Heard Mr. G. Rahul, the learned counsel for the petitioner. Also heard Mr. KK Nandi, the learned counsel for the respondent No. 2.
2. 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 Page No.# 3/7 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 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;
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(g) Cost of the suit.
(h) Any other relief/relief(s) to which the plaintiff is entitled to under the law, equity and justice."
3. 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".
4. The respondent No. 1 entered appearance through the learned counsel one Sri Brijesh 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 Page No.# 5/7 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.
5. 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.
6. 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 Page No.# 6/7 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 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."
7. On perusal of the impugned order, this court is of the view 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. The Sub-section 2 of Section 8 of the Arbitration and Conciliation Act, 1996 mandates that an application under Sub-section 1 of Section 8 shall not be entertained unless it is accompanied by the original arbitration agreement or the duly certified copy thereof. The law is well settled that it is absolutely essential and necessary that there should be an agreement between the parties. In the case in hand, along with the application under Sub-section 1 of Section 8, the partnership agreement was not annexed. The learned court below, in the aforesaid backdrop, in the considered opinion of this court has committed a serious jurisdictional error by passing the impugned order on the basis of the oral submission of the learned counsel for the respondent No. 1. The proviso to Sub-section 2 of Section 8 was inserted by virtue of the 2016 amendment to the Page No.# 7/7 Arbitration and Conciliation Act. The said provision further gives a chance to the party who claims existence of an Arbitration clause, when it is claimed that same is not available with the party applying and has been retained by the other party to the agreement to bring such arbitration agreement on record by way of filing such application along with a copy of arbitration agreement and petition praying to the court to call upon the other party to produce the original arbitration agreement. Thus, the said proviso also makes it clear that in the event original is retained by the other party, the party which claims existence of an arbitration clause/ agreement, needs to file an application with a copy of the arbitration agreement to call for the original. Therefore, a court to exercise its power under Section 8 of the Arbitration and Conciliation Act, 1996 must have a copy of the agreement before it.
8. In the case in hand, a bare reading of the application filed under Section 8 of the Arbitration and Conciliation Act, 1996, it is clear that the same is silent in respect of any arbitration clause of the partnership deed. Therefore, in the aforesaid factual backdrop and the mandates of Section 8, this court is of the considered opinion that the learned court below has committed serious jurisdictional error while passing 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. 92/2020 arising out of Title Suit No. 23/2020. Therefore, the impugned order is hereby set aside and quashed.
Interim order, if any, stands vacated.
JUDGE Comparing Assistant