2016 Supreme(Raj) 551

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Mohammad Rafiq, J.
Abhishek Soni - Applicant
Versus
Sanjeev Soni - Respondent
Arbitration Application No. 8 of 2014
Decided On : 11-03-2016

Headnote:

Arbitration and Conciliation Act , 1996 - Section 11,5 - Section 8 - Section 9 - Section 2,1 - Arbitration Act, 1940 - Section 20 - Indian Partnership Act, 1932 - Section 69 - Seeking appointment of Arbitrator - Applicant served a notice through Advocate calling upon him to render books of accounts and allow applicant to participate in working of business as well as given him share in profits - Respondent did not give any reply thereto even after receiving legal notice, as a result of which, applicant was constrained to file a civil suit for rendition of account and permanent injunction in court of District Judge, Kota - Respondent filed an application along-with a duly certified copy of partnership deed - Respondent also filed written statement to main suit, in which he maintained that partnership firm was constituted at behest of his father and respondent never gave any share in profit of business and that there was no partnership between parties - Applicant in fact never worked on shop, therefore, he was not entitled to any share in profit of business - Said court passed an order on application, observing that partnership deed contained clause in respect of arbitration and therefore directed both parties to take required steps for appointment of arbitrator - Applicant thereupon sent a notice seeking appointment of Arbitrator, to respondent through Advocate and also calling upon Respondent to provide all books of accounts of partnership firm, and pay amount due to in accordance with partnership deed - He proposed names of three retired Judges of this court to be appointed as sole Arbitrator - Despite receiving legal notice, respondent did not reply to same - Hence, present application - Learned counsel for applicant, has reiterated all arguments mentioned in application and submitted that when Respondent, despite order of court of District Judge passed, supra, and service of notice by applicant, failed to appoint Arbitrator, applicant was left with no option except to approach this court – Held , Power has to be exercised by Chief Justice of Supreme Court/High Court or his nominee or delegate, and not by Court - Referring to observations made by Supreme Court of judgment in West Bengal and Others v Associated Contractors, supra, it was observed that there are a variety of reasons as to why Supreme Court cannot possibly be considered to be court within meaning even if it retains seizing over arbitral proceedings - Chief Justice does not represent Supreme Court or High Court, as case may be, while exercising power albeit a judicial power, and y not being a court of record, their decision has no precedential value being decision of judicial authority - High Court further held that scheme of is different and process of mechanism for alternate dispute resolution system has to be construed not identical to considering difference in their schemes - Therefore, non-registration of partnership firm would not be a bar for institutions of proceedings - Supreme Court in Firm and Another, in context of held that bar enacted does not affect maintainability of an application - Right conferred by cannot be said to be one arising out of a contract - Qualification which person invoking jurisdiction of Court must possess, is of being a party to an arbitration agreement - A person not party to an arbitration agreement, cannot enter Court for protection - This has relevance only to his locus standi as an applicant and court has nothing to do with relief sought for from Court or right which is sought to be canvassed in support of relief - Application filed by one of parties to agreement having clause of arbitration and in this case when such an order was passed by civil court on application of respondent filed stating that partnership deed contained clause in respect to arbitration - Civil court therefore directed both parties to take required steps for appointment of arbitrator - Similar situation was before Supreme Court in -Enterprises, supra, where reference to arbitrator was at instance of appellant himself, and in present case - Allowed