9911796707
TMI Blog2003 (5) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... binding on all the parties. Clause 12 of the partnership deed stipulates that death, retirement or insolvency of any of the parties shall not dissolve the business of the firm and the remaining parties shall carry on the business. Clause 13 stipulates that retiring party shall give three months notice to the remaining parties. Plaintiffs decided to retire from the partnership firm and they intimated their intention to retire to the second defendant on 30-6-2002 and on 31-7-2002 first plaintiff demanded settlement of accounts and for payment of their respective capital, etc. On 31-8-2002 all the partners entered into a retirement agreement permitting the plaintiffs 1 and 2 to retire from the first defendant - partnership firm. For the disposal of these three matters, it is not necessary to consider under what circumstances the retiring agreement was entered into between the parties. The plaintiffs claimed that as per the retirement agreement, first plaintiff is to be paid a sum of Rs. 36,00,000 and second plaintiff is to be paid another sum of Rs. 29,50,000 by the firm, and other partners of the firm. The plaintiffs filed a suit to recover the above sums with interest at 18% per ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ex parte order of injunction. Aggrieved by the said ex parte order of injunction, C.M.A. No. 449 of 2003 is filed. 6. The contesting defendants did not file any written statement in the suit in the trial court. They did not also file any counter in any of the above three interim applications. They did not also file any petition to vacate or modify ex parte orders passed by the trial court. It is pertinent to point out that defendants 1 to 3 and 5 filed an application in I.A. No. 185 of 2003 in the trial court under section 8(1) of Arbitration and Conciliation Act, 1996, requesting the trial court to refer the matter to the Arbitrator to decide whether the plaintiffs are entitled to the amount or not as per the partner-ship deed dated 1-4-1997 as per section 8(1) of Arbitration and Conciliation Act. It is not in dispute that the plaintiffs filed a counter in the said application opposing the request of the defendants 1 to 3 and 5. The said petition is still pending for consideration by the trial court. The said petition in I.A. No. 185 of 2003 is not the subject-matter of any of the three matters pending before this court. 7. The learned counsel for the contesting defendants co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntract. It also held that a claim for damages was a dispute or difference which arose between the respondent and the appellant and was upon or in relation to or in connection with the contract, and the reference to the Arbitrator by the respondent was not barred.--In Smt. Kalpana Kothari v. Smt. Sudha Yadav AIR 2002 SC 404 the Apex Court explained the scope and object of section 8 of the New Act and section 34 of the Old Act. In P. Anand Gajapathi Raju v. P.V.G. Raju AIR 2000 SC 1886, the Apex Court held that a reference under section 8 of the New Act can be made even during the pendency of the appeal. The Apex Court in Vishnu Chandra v. Chandrika Prasad Agarwal AIR 1983 SC 523 considered and decided the effect of retirement of a partner on the partnership agreement. 9. We are of the considered opinion that there is no need for this court to refer to the principles of law as well as the facts in any of the above decisions for the disposal of these three matters pending before this court. It is already noticed that a petition in I.A. No. 185 of 2003 filed by the contesting defendants under section 8 of the New Act is pending consideration before the trial court. The trial court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court in A. Venkatasubbiah Naidu v. S. Challappan JT 2000 (10) SC 599. It is relied upon to show that an appeal against ex parte order of injunction is maintainable. There is no dispute that an appeal can be filed by the aggrieved party even against an ex parte order of injunction. In the appeal only one ground is raised. The said ground is that the trial court failed to appreciate the partnership deed in proper manner and granted an injunction without looking into clause 15 of partnership deed and the trial court has no jurisdiction to number the suit in view of clause 15 of the partnership agreement. No other ground is mentioned in the appeal questioning the ex parte order of injunction passed by the trial court. We are unable to accept the contention that in view of clause 15 of the partnership deed providing for settlement of the disputes by a sole Arbitrator, the Civil Court has no jurisdiction to entertain the suit and pass interim order. We give below the reasons for our conclusion. 14. In this regard it is necessary to refer to the provision in section 9 of Arbitration and Conciliation Act, 1996. The said provision reads as follows: "Interim measures, etc., by Court.--A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recourse to a Civil Court and seek appropriate remedies. If the Legislature wanted to bar the jurisdiction of civil court in cases arising out of a contract with an arbitration clause, it would not have inserted a specific provision like section 9 in the above Act empowering the Civil Court to grant certain interim orders. If a party to the arbitration agreement wants the matter to be decided by arbitration, then, as laid down in section 8(1) of the Act, he can request the Civil Court by filing appropriate application under section 8 of the above Act to refer the parties to arbitration. As already noticed the contesting defendants have already exercised their right by filing a petition in I.A. No. 185 of 2003 before the trial court. That petition will be decided by the trial court in accordance with law. As the sole ground raised in the grounds of appeal that the Civil Court has no jurisdiction to entertain the suit is not tenable, there are no other reasons for this court to set aside the ex parte order of injunction granted by the trial court. It is always open for the contesting defendants to contest the injunction application on any of the grounds open to them and seek dismissa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
