SANJIB BANERJEE, J.

The suit is in the nature of partition. The first plaintiff and the first, seventh and eleventh defendants are brothers. In all, the plaintiffs claim reliefs under 30 heads spread over nine pages of the 111-page plaint in the suit instituted with leave under clause 12 of the Letters Parent and under Order II Rule 2 of the Code of Civil Procedure. The cause title runs into 21 pages. The second plaintiff is the son of the first plaintiff. The second to the tenth defendants belong to the first defendant’s branch; the twelfth to the sixteenth defendants are in the eleventh defendant’s branch; and, the eighteenth to the twentieth defendants are in the seventeenth defendant’s branch. The remaining defendants are mostly companies except three of them which are partnership firms. The plaintiffs claim such companies and firms to be part of the family business of the Todis and treat such business entities and their assets as part the joint family properties.

GA No. 1596 of 2010 is the plaintiffs’ interlocutory application in aid of the reliefs claimed in the suit. GA No. 1756 of 2010 is the first defendant’s application under Section 8 of the Arbitration and Conciliation Act, 1996 seeking a reference of the disputes to arbitration. There is an anomalous second prayer in the first defendant’s application to the effect that the four brothers be directed to proceed with the ongoing arbitration before a sole arbitrator, but such prayer may be seen as the general understanding of the Todi brothers that notwithstanding the ostensible independent identity of the family companies and firms, such companies and firms and the assets that are in their names are part of the joint properties.

The application under Section 8 of the 1996 Act was heard out and judgment reserved on August 5, 2010 after all the then appearing parties had concluded their submission. It was thereafter discovered that a number of the parties may not have been served since the affidavit-of-service was not on record. The application was then directed to appear on August 9, 2010 and the first defendant was called upon to produce the affidavit-of-service. No affidavit-of service was forthcoming. Service was directed to be effected on all the parties so that the views of the parties could be obtained as to whether they supported or opposed the first defendant’s prayer for reference of the disputes in the suit to arbitration. It was only on August 27, 2010 that a satisfactory report as to service could be placed by the first defendant. The order of such date recorded that only the plaintiffs and the 84th defendant appeared to oppose the application for reference. The 84th defendant claimed that it had no previous notice of the application and sought directions for filing its affidavit. All the defendants, save the defendant nos. 22, 28 and 33, have been represented. The three non-appearing defendants were served but chose not to appear. The 47th and 49th defendants have submitted that such companies have no connection with the Todi family and there are no Todi shareholders in their registers of members. They suggest that they are neither proper parties to the suit nor can the Todis claim anything against such companies or their assets. Such position has not been seriously disputed by the individual Todis or the Todi concerns which are represented.

It is the application under Section 8 of the 1996 Act that has to be taken up first, for if such application succeeds the plaintiffs’ interlocutory application would become meaningless. To appreciate the circumstances in which the first defendant, supported by the overwhelming majority of the other defendants, maintains that the disputes in the suit are liable to be referred to arbitration, it is the plaintiffs’ claim that has first to be seen. The following case has been made out in the plaint:

a. The four Todi brothers who are parties herein are sons of Brijlal Todi, deceased. Brijlal and his father Gan