9911796707
TMI Blog2000 (7) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... tered firm defending a proceedings against it and it precludes only the initiation of any proceeding by such a firm. 2. The Gas Authority of India Ltd., at Vijaypur, entered into a contract with the appellant to execute certain works and the appellant in its turn had entered into a separate contract with the respondent, indisputably an unregistered firm for carrying out the work, the execution of which was undertaken by the appellant under its contract with 'GAIL'. Disputes arose between the appellant and the respondent. Thereupon, the appellant appears to have, invoking Section 8(2) of the Arbitration Act, 1940, served a notice on the respondent seeking for consent for the appointment of an Arbitrator, in terms of the arbitratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed arose out of the only preliminary issue decided by the trial court on the applicability or otherwise of Section 69 of the Partnership Act to the case on hand, the arguments were confined to the question of disability, if any, of the respondent, being an unregistered firm, forgetting any decree on the award of the Arbitrator, in the proceedings initiated by the Arbitrator. 5. Mr. Sanjay Parikh, learned Counsel for the appellant, contended that the Courts below ought to have sustained the objection of the appellant based upon Section 69 of the Partnership Act holding the proceedings to be barred on account of the respondent being an unregistered firm. According to the learned Counsel the proceedings arising out of an awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one else to go into the disputes between the parties was objected to, among other things on the ground that Section 69(3) of the Partnership Act afford a bar to the petition because the partnership was not registered. As against the conclusion of the High Court that the application was maintainable, an appeal was filed in this Court. In construing the words, a claim of set off or other proceeding to enforce a right arising from a contract... , it was held that 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) other proceedings and while the Section first provides for exclusion of suits in Sub-sections (1) (2) of Section 69 the same ban is also applied to a claim of set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 69(2) was not attracted to that case since the suit for permanent injunction to restrain the defendants from using the plaintiff's trade mark/name was based upon the statutory rights under the Trade marks Act and on common law principles of tort applicable to passing off actions and not under the unregistered partnership agreement. 8. The persistent plea made on behalf of the appellant before us is that the bar imposed under Section 69(3) is attracted to the case on hand and that inasmuch as the same prohibits the enforcement of any right arising from a contract by an unregistered firm, the objection can be taken at any stage i.e., even post award proceedings instituted to enforce the award. Inspiration is drawn for this claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity based upon Section 69 of the Partnership Act, 1932. 9. The prohibition contained in Section 69 is in respect of instituting a proceeding to enforce a right arising from a contract in any Court by an unregistered firm, and it had no application to the proceedings before an Arbitrator and that too when the reference to the Arbitrator was at the instance of the appellant itself. If the said bar engrafted in Section 69 is absolute in its terms and is destructive of any and every right arising under the contract itself and not confined merely to enforcement of a right arising from a contract by an unregistered firm by instituting a suit or other proceedings in Court only, it would become a jurisdictional issue in respect of the Arbitrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a Court of the parties' own choice and until impeached upon sufficient grounds in an appropriate proceedings, an Award which is on the face of it regular, is conclusive upon the merits of the controversy submitted for Arbitration. Consequently, the post Award proceedings cannot be considered by any means, to be a suit or other proceedings to enforce any rights arising under a contract. All the more so when, as in this case, at all stages the respondent was only on the defence and has not itself instituted any proceedings to enforce any rights of the nature prohibited under Section 69 of the Partnership Act, before any Court as such. We see no infirmity or error whatsoever in the decision of the courts below to call for our interferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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