ORDER :

UJJAL BHUYAN, J.

1. Heard Mr. S.K. Ghosh, learned counsel for the petitioners and Mr. AHMR Choudhury, learned counsel for the respondents.

2. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 (1996 Act) for appointment of arbitrator.

3. Petitioner Nos. 1 to 5 are the sons and daughter of Lt. Nehal Ch. Paul whereas petitioner Nos. 6 and 7 are the widow and son of late Nikhil Ch Paul.

4. Respondents are wife, daughters and sons of late Nishi Kanta Paul.

5. According to the petitioners, a partnership deed was executed on 29.03.1972 under the name and style of M/s. NCNK Paul dealing with grocery items such as sugar, atta, flour, petrol and its bio products. This was followed by another partnership deed dated 14.04.1976 and finally on 14.04.1980.

6. It is stated that predecessor of the respondents Nishi Kanta Paul had mortgaged the title deeds of the land over which residence and petrol pump were constructed with the Bank of Baroda, Silchar Branch for availing loan. For failure to repay the loan, proceedings were initiated by the Bank before the Debts Recovery Tribunal at Guwahati which decreed against the firm, namely, M/s. NCNK Paul, and it was only at the appellate stage that an amicable settlement would be arrived at but at a considerable cost.

7. There was also litigation with the Indian Oil Corporation Ltd. which led to institution of civil suit and thereafter money execution case by the said Corporation. It is in such circumstances that petitioners called upon the respondents to render cooperation to the extent of their shares in meeting the liabilities of the partnership firm. But that was not agreed upon by the respondents.

8. Petitioners invoked the arbitration clause in the partnership deed dated 14.4.1980 and sought reference to arbitration of the dispute that had arisen between petitioners and respondents. As there was no response and under wrong legal advice petitioners had moved the Court of learned District Judge, Hailakandi under Section 8 of the 1996 Act for appointment of arbitrator which was registered as Misc. Arbitration Case No. 1/2017. However, despite not having jurisdiction, learned District Judge proceeded on merit and rejected the petition of the petitioners vide order dated 22.03.2018 on the ground that respondents were not parties to the arbitration agreement.

9. It is in such circumstances, that the present petition has been filed.

9.1. Notice in this case was issued on 25.05.2018.

10. Respondents in their common affidavit have denied existence of the partnership deeds and also default by their predecessor in repayment of Bank dues. However, dues claimed by Indian Oil Corporation Ltd. has been admitted but it is stated that respondents have paid their share of the dues. Order passed by the learned District Judge rejecting the petition of the petitioners for appointment of arbitrator is supported by the respondents. Stand taken in the affidavit is that since respondents were not parties to the arbitration agreement, they cannot be compelled to face arbitration proceeding. Therefore, arbitration petition should be dismissed.

11. In the course of the hearing on 25.01.2019, this Court noted that the deed of partnership dated 14.04.1980 was between Nishi Kanta Paul, Nikhil Ch. Paul, Nirmal Ch. Paul and Niranjan Ch Paul. Petitioners are the legal heirs of Nehal Ch Paul and Nikhil Ch. Paul. On the other hand, it was submitted that respondents are legal heirs of Nishi Kanta Paul. In the proceedings held on 25.01.2019 this Court posed a question as to whether petitioners can invoke the arbitration clause i.e. Clause 21 of the deed of partnership dated 14.04.1980 as they have not been formally inducted as partners of the partnership firm.

11.1. Learned counsel for the parties made elaborate submission on this aspect of the matter in the hearing which took place on 15.02.2019.

12. Submissions made by learned counsel for the parties have been considered.

13. In this proceeding we are c