JUDGMENT :

1. The respondent no. 2 is admittedly an unregistered partnership firm. According to the respondents, the petitioner retired from the firm by oral settlement in the year 2014. However, the petitioner denies such retirement and contends that he, as Karta of his HUF, all along continued to be a partner till he issued a notice under Section 43 of the Partnership Act, 1932 to dissolve the firm on November 10, 2022.

2. The petitioner seeks reference to arbitration of the disputes which have currently arisen between the parties with regard to the assets of the partnership firm, since dissolved. Since the parties failed to agree on an arbitrator, the present application under Article 11 of the Arbitration and Conciliation Act, 1996 (for short, “the 1996 Act”) has been preferred.

3. The respondents object to such reference inter alia on the ground of limitation. Learned counsel for the respondents contends that the petitioner lost locus standi to raise dispute as a partner with his retirement in the year 2014, for which limitation has expired in the year 2017. The disputes have only been raised in the year 2022. The respondents have also filed a suit, inter alia seeking a declaration with regard to such retirement, bearing Title Suit No. 1533 of 2016, which is now pending before the City Civil Court at Calcutta.

4. Learned counsel for the respondents cites the judgment of a coordinate Bench of this Court in Partha Pratim Banerjee and Another V. Satya Narayan Jaiswal and Others, reported at 2023 SCC OnLine Cal 603, where the learned Single Judge, by placing reliance on Vidya Drolia’s Case [(2021) 2 SCC 1], observed that the courts can interfere where it is evident that the claims are ex facie time-barred or, in other words, “to cut the deadwood”.

5. It is also argued by the respondents that after the petitioner retired as a partner of the erstwhile partnership firm (respondent no. 2), the same was incorporated into a company under the Companies Act, 2013. Therefore the present application is bad for misjoinder of the dissolved partnership firm.

6. That apart, the assets in respect of which the disputes have been raised belong to the company now, which is a separate juristic entity and would be otherwise required to be impleaded if any such relief is claimed; however, since the company was never a party to the partnership or reconstitution deeds containing the arbitration clause, no relief can be sought before the arbitrator against it. Hence, it is argued that the disputes are not arbitrable at all and the application under Section 11 ought to be dismissed.

7. Learned counsel for the petitioner places reliance on the same decision of the Supreme Court, that is, Vidya Drolia and Others V. Durga Trading Corporation, reported at (2021) 2 SCC 1, to highlight that if the question of limitation is debatable, the court would force the parties to abide by the arbitration agreement. Rarely as a demurrer may the court interfere at the Section 8 or 11 stages when it is manifestly and ex facie certain that arbitration agreement is nonexistent, invalid or the disputes are demonstrably non-arbitrable, in which case it would “cut off the deadwood”.

8. It is argued that in the present case the dispute involved is ex facie non-arbitrable, since the remedy is time-barred.

9. Learned counsel for the petitioner next cites Uttarakhand Purv Sainik Kalyan Nigam Limited V. Northern Coal Field Limited, reported at (2020) 2 SCC 455, where the Supreme Court observed that in view of the legislative mandate contained in Section 11 (6-A) of the 1996 Act, the court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the kompetenz-kompetenz principle.

10. It is argued that the arbitration clause, which is Clause 18 of the reconstitution of partnership deed, encompasses disputes or differences in connection with the partnership