IMPORTANT POINT
The broad interpretation of the arbitration clause in the partnership deed and the arbitrability of claims relating to the company under the Arbitration and Conciliation Act, 1996.

JUDGMENT

Prathiba M. Singh, J. (Oral) - This hearing has been done through hybrid mode.

2. The present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 arises out of a partnership deed dated 27th June, 2016 between the following person:

1. Mr. Prashant Sharma

2. Mr. Jayant Bhandari

3. Mr. Jayant Sati

4. Mr. Mohit Sharma

5. Mr. Kaushal Kishore Tyagi

3. The partnership deed clearly narrates that the above parties intended to carry on the business of trading, import and export of books and any other businesses which the partners intended to deal with at its head office at 266 E/3/1C 2nd Floor, Ward No.2, Khasra No.1151/3, Mehrauli, New Delhi-110030. The partners also agreed that the name of the partnership business would be known as M/s Opuskart Enterprises. The partnership came into effect from 27th June, 2016 and as on date is also subsisting. The respective shares of the parties is contained in the partnership deed. Paragraph 12 of the partnership deed requires each of the partners to be just and faithful and render true accounts and full information relating to the firm to the other partners and also pay their separate private debts on their own. Relevant clause 12 is set out below:

"12. That each partner shall-

(a) be just and faithful to each other and shall render true accounts and full information of all things which come to his knowledge affecting the firm, to other partners and in case of death of partner, to his legal representative.

(b) pay his separate and private debts himself and in case of loss to the partnership on his account shall indemnify the other partner or partners of the partnership against all proceeding, claims or demands in respect thereof."

4. The case of the Petitioners is that the Respondent-Mr. Kaushal Kishore Tyagi has indulged in misappropriation of funds of the firm. Accordingly, notice dated 18th June, 2021 was issued initially raising a claim of Rs.60,50,000/-. The reply was issued to the said notice on 28th June, 2021 wherein the Respondent states that apart from being a partner in the partnership firm, the said partners are also Directors in M/s Opuskart India Pvt. Ltd. In the said reply to the legal notice, an allegation was raised by the Respondent that the Petitioners intend to hijack, usurp and run away with the business of both the firm as also the company. The notice is thus refuted by the Respondent.

5. Thereafter, the Petitioners invoked the arbitration clause vide letter dated 25th June, 2022 in which the claims are raised to the tune of Rs.3.88 crores. After the service of the said notice, since no reply is received, the present petition has been filed.

6. Notice was issued in this petition on 7th February, 2023. Thereafter, pleadings have been completed in the matter and the petition has been taken up for hearing.

7. Mr. Shyam Kumar, ld. Counsel for the Petitioners submits that broadly the objections raised in the reply are:

i) that the clause 16 of the partnership deed refers to the Indian Arbitration Act,1940 and not the Arbitration and Conciliation Act, 1996;

ii) that the arbitration agreement is unstamped;

iii) that there is a variance in the claimed amounts in the initial notice and the notice invoking arbitration;

iv) that the claims relating to the company cannot be raised as part of the arbitration notice as the company is not a party to the arbitration agreement;

v) that the claims are barred by limitation.

In respect of each of the above contentions, ld. Counsel has made his submissions.

8. It is his submission with respect to objection (i) i.e., regarding the Act referred in the agreement, is that he relies upon the decision of the judgment of the Supreme Court in Purushottam s/o Tulsiram Badwaik v. Anil & Ors., [SLP (Civil) No. 14589/2016, 4 SCC (Civ) 21] to argue that the arbitration agreement would not be invalid due to wrong reference of the statute.

9. Insofar as the unstamped arbitration agreement is concerned i.e. objection (ii), reliance is placed by the Coun