This is a petition, filed under Section 11 of the Arbitration and Conciliation Ordinance, 1996 (later passed as the Arbitration and Conciliation Act, No. 26 of 1996 (hereinafter referred to as the Act).

2. Heard Shri C. K. Sarma Baruah, learned counsel for the petitioners and Shri A. B. Choudhury, learned counsel for the respondents.

3. The petitioners and the respondents Nos. 1 to 5, entered into a partnership under the name and style of "M/s. Pancharatna Transport Company", to run ferry service on annual lease basis from the Inland Water Transport Department, Government of Assam. According to the averments made in the petition, the partnership was at will having 12 partners. A copy of the partnership deed has been filed as Annexure-I to the petition.

4. According to the petitioners, the work under the partnership deed had started from 1-4-1988, and the books of accounts were being kept by Mohd. Iftikar Ahmed, opposite party No. 1; but the petitioners were not being paid share of their profit in accordance with the partnership agreement for certain periods. Hence, ultimately, petitioner No. 3, Mohd. Kamrul Hasan, gave a notice dated 23-1-95, on his behalf and on behalf of the other petitioners, addressed to the respondent No. 1, Mohd. Iftikar Ahmed, raising grievance about the non-payment of their share and yet another notice was sent, addressed to the respondent No. 1, on 26-9-95, through counsel. The request, however, made for settlement of accounts, was not accepted. It is also indicated that a reply was also given by the respondent to the notices. But, ultimately, when the accounts were not settled and the share in the profits were not paid, a notice dated 7-3-96 was issued by the petitioners to the respondents invoking Clause 10 of the agreement for settlement of the dispute by appointing arbitrator. It was requested that the accounts of partnership business for the period from 1-4-91 to 31-3-96 be settled and amounts payable be determined and be paid to the petitioners. A copy of the said notice invoking arbitration clause, dated 7-3-96, has been filed as Annexure-IV to the petition. It is said that a reply was also sent to the said notice saying that no dispute had arisen between the parties. Hence, there was no occasion to appoint any arbitrator. A copy of the reply dated 9-4-96, said to be sent by the respondents, has been filed as Annexure-V to the petition.

5. Since no arbitrator was appointed, the present petition was filed on 5-6-96, with a prayer for appointment of an arbitrator.

6. An affidavit-in-opposition has been filed disputing the factual aspects of the matter and also reiterating the fact that there was no dispute liable to be referred to arbitration. The maintainability of the petition under Section 11 of the Arbitration and Conciliation Act, 1996 was also challenged on the ground of Section 69 of the Partnership Act, 1932. Since the partnership firm was an unregistered firm, hence no proceedings could be initiated for appointment of an arbitrator.

7. Learned counsel appearing for the respondents raised a preliminary objection about the maintainability of the present petition in view of bar under Section 69 (3) of the Partnership Act.

8. It is undisputed that the firm is unregistered. The effect of non-registration of a firm is to be found under Section 69 of the Partnership Act, 1932, which reads as under :-

"69. Effect of non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing ar