Appeal No 791 of 1962
Appeal by special leave from the judgment and order dated March 22 1960 of the Bombay High Court in Award No 18 of 1959
section T Desai and I N Shroff for the appellant
B C Misra for the respondent
April 29 1964
The Judgment of the Court was delivered by HIDAYATULLAH J
This appeal by special leave is directed against an order of the High Court of Bombay dated March 22 1960 in its ordinary original civil jurisdiction
The facts are simple
By a letter dated July 30 1955 Messrs Kajaria rraders India Ltd who is the respondent here and Messrs Foreign Import and Export Association sole proprietory firm owned by the appellant Jagdish C Gupta entered into a partnership to export between January and June 1956 10000 tons of manganese ore to Phillips Brothers India Ltd New York
Each partner was to supply a certain quantity of manganese ore
We are not concerned with the terms of the agreement but with one of its clauses which provided That in case of dispute the matter will be referred for arbitration in accordance with the Indian 
 The company alleged that Jagdish Chander Gupta failed to carry out his part of the partnership agreement
After some correspondence the company wrote to Jagdish Chander Gupta on February 28 1959 that they had appointed Mr R J Kolah Advocate OS as their arbitrator and asked Jagdish Chander Gupta either to agree to Mr Kolah s appointment as sole arbitrator or to appoint his own arbitrator
Jagdish Chander Gupta put off consideration and on March 17 1959 the company informed Jagdish Chander Gupta that as he had failed to appoint an arbitrator within 15 clear days they were appointing Mr Kolah as sole arbitrator
Jagdish Chander Gupta disputed this and the corn 53 pany filed on March 28 1959 an application under section 8 2 of the Indian for the appointment of Mr Kolah or any other person as arbitrator
Jagdish Chander Gupta appeared and objected inter alia to the institution of the petition
Two grounds were urged i that section 82 of the Indian was not appli cable as it was not expressly provided in the arbitration clause quoted above that the arbitrators were to be by consent of the parties and ii that section 693 of the afforded a bar to the petition because the partnership was not registered
The petition was refer red by the Chief Justice to a Divisional Bench consisting of Mr Justice Mudholkar as he then was and Mr Justice Naik
The two learned Judges agreed that in the circumstances of the case an application under section 8 of the Indian was competent and that the court had power to appoint an arbitrator
They disagreed on the second point Mr Justice Mudholkar was of the opinion that section 693 of the barred the application while Mr Justice Naik held otherwise The case was then referred to Mr Justice K T Desai as he then was and he agreed with Mr Justice Naik with the result that the application was held to be competent
In this appeal it was not contended that the conclusions of the learned Judges in regard to section 82 were erroneous
The decision was challenged only on the ground that section 693 was wrongly interpreted and the bar afforded by it was wrongly disallowed
Section 69 of the may be reproduced here  691 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
54 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 are or have been shown in the Register of Firms as partners in the 3 The provisions of sub sections1 and 2 shall apply also to a claim ofset off or other proceeding to enforce a rightarising from a contract but shall not affect a the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm or any right or power to realise the property of a dissolved firm or b the powers of an official assignee receiver or Court under the  or the  to realise the property of an insolvent partner
4 This section shall not apply a to firms or to partners in firms which have no place of business in the territories to which this Act extends or whose places of business in the said territories are situated in areas to which by notification under section 56 this Chapter does not apply or b to any suit or claim of set off not exceeding one hundred rupees in value which in the Presidency towns is not of a kind specified in section 19 of the  or outside the Presidency towns is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act 1887 or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim Me section speaking generally bars certain suits and pro ceedings as a consequence of non registration of firms
Sub 55 section 1 prohibits the institution of a suit between partners inter se or between partners and the firm for the purpose of enforcing a right arising from a contract or conferred by the Partnership Act 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
Sub section
2 similarly prohibits a suit by or on behalf of the firm against a third party for the purpose of enforcing rights arising from a contract 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
In the third sub section a claim of set off which is in the nature of a counter claim is also similarly barred
Then that subsection bars other proceedings
The only doubt that has arisen in this case is regarding the meaning to be given to the expression other proceeding
One way to look at the matter is to give these words their full and natural meaning and the other way is to cut down that meaning in the light of the words that precede them
The next question is whether the application under section 8 2 of the can be regarded as a proceeding to enforce a right arising from a contract and therefore within the bar of section 69 of the 
Mr Justice Mudholkar in reaching his conclusion did not interpret the expression other proceeding ejusdem generis with the words a claim of set off
He held further that the application was to enforce a right arising from the contract of the parties
Mr Justice Naik pointed out that the words used were not any proceeding nor any other proceedings but other proceeding and that as these words were juxtaposed with a claim of set off  they indicated a proceeding of the nature of a claim in defence
On the second point Mr Justice Naik held that this was not a proceeding to enforce a right arising from a contract but was a claim for damages and such a claim could be enter tained because it was based on something which was inde pendent of the contract to supply ore
He held that the right which was being enforced was a right arising from the and not from the contract of the parties
Mr Justice K T Desai agreed with most of these conclu sions and suggeted that the words preceding other proceed 56 ing namely a claim of set off had demonstrative and limiting effect 
He seems to have ascertained the meaning of the expression other proceeding by reference to the meaning of the words a claim of set off which he considered were associated with it
Ile first question to decide is whether the present pro ceeding is one to enforce a right arising from the contract of the parties
The proceeding under the eighth section of the has its genesis in the arbitration clause because without an agreement to refer the matter to arbitration that section cannot possibly be invoked
Since the arbitration clause is a part of the agreement constituting the partnership it is obvious that the proceeding which is before the court is to enforce a right which arises from a contract
Whether we view the contract between the parties as a whole or view only the clause about arbitration it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the 
agreement of the parties
The words of section 693 a right arising from a contract are in either sense sufficient to cover the present matter
It remains however to consider whether by reason of the fact that the words other proceeding stand opposed to the words a claim of set off any limitation in their eaning was contemplated
It is on this aspect of the case that the learned Judges have seriously differed
When in a statute particular classes are mentioned by name and then are followed by general words the general words are sometimes construed ejusdem generis ie limited to the same category or genus comprehended by the particular wordsbut it is not necessary that this rule must alwavs apply
The nature of the special words and the general words must e considered before the rule is applied
In Allen vs Emerson 1 Asquith J gave interesting examples of particular words followed by general words where the Principle of ejusdem generis might or might not apply
We ink that the following illustration will clear any difflculty
In the expression books pamphlets newspapers and other 1 i944 1 KB 362
57 documents private letters may not be held included it other documents  be intepreted ejusdem generis with what goes before
But in a provision which reads newspapers or other document likely to convey secrets to the enemy the words other document  would include document of any kind and would not take their colour from newspapers 
It follows therefore that interpretation ejusdem generis or noscitur a sociis need not always be made when words showiig particular classes are followed by general words
Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted
Here the expression claim of set off does not disclose a category or a genus
Set offs are of two kinds legal and equitable and both are already comprehended and it is difficult to think of any right arising from a contract which is of the same nature as a claim of set off and can be raised by a defendant in a suit
Mr B C Misra whom we invited to give us examples admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim of set off other than a claim of set off which could be raised in a suit such as is described in the second sub section
In respect of the first sub secton he could give only two examples
They are i a claim by a pledger of goods with an unregistered firm whose goods are attached and who has to make an objection under 0
21 r 58 of the Code of Civil Procedure and ii proving a debt before a liquidator
The latter is not raised as a defence and cannot belong to the same genus as a claim of set off
The former can be made to fit but by a stretch of some considerable imagination
It is difficult for Lis to accept that the Legislature was thinking of such far fetched things when it spoke of other proceeding ejusdem generis with a claim of set off
Mr Justice Naik asked the question that if all proceedings were to be excluded why was it not considered suffi cient to speak of proceedings along with suits in sub sections
1 and 2 instead of framing a separate subsection about proceedings and coupling other proceeding  with a 58 the search for the answer in the  scheme of the section itself gives the clue
The section thinks in terms of a suits and b claims of set off which are in a sense of the nature of suits and c of other proceedings
The section first provides for exclusion of suits in sub sections
1 and 2
Then it says that the same ban applies to a claim of set off and other proceeding to enforce a right arising from a contract
Next it excludes the ban in respect of the right to sue a for the dissolution of a firm b for accounts of
a dissolved firm and c for the realisation of the property of a dissolved firm
The emphasis in each case is on dissolution of the firm
Then follows a general exclusion of the section
The fourth sub section says that the section as a whole is not to apply to firms or to partners and firms which have no place of business in the territories of India or whose places of business are situated in the territories of India but in areas to which Chapter VII is not to apply and to suits or claims of set off not exceeding Rs 100 in value
Here there is no insistence on the dissolution of the firm
It is significant that in the latter part of clause b of that section the words are or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim and this clearly shows that the word proceeding is not limited to a proceeding in the nature of a suit or a claim of set off
Subsection 4 combines suits and a claim of set off and then speaks of any proceeding in execution and other proceeding incidental to or arising from any such suit or clainm as being outside the ban of the main section
It would hardly have been necessary to be so explicit if the words other proceeding in the main section had a meaning as restricted as is suggested by the respondent
It is possible that the draftsman wishing to make exceptions of different kinds in respect of suits claims of set off and other proceedings grouped suits in sub sections
1 and 2 set off and other proceedings in sub section
3 made some special exceptions in respect of them in sub section
3 in respect of dissolved firms and then viewed them all together in sub section
4 providing for a complete exclusion  of the section in respect of suits of particular classes
For convenience of drafting this 59 scheme was probably followed and nothing can be spelled out from the manner in which the section is sub divided
Some cases noticed by the High Court were cited to us but none of them appears to be really in point
In Hafiz Qamar Din vs Nur Din  and Babutal Dhandhania vs Messrs Gauttam and Co  proceedings were started on an award in one to make it a rule of the Court and in the other to get it set aside
These cases are distinguishable because they deal with awards and it is not necessary to decide whether after an award the proceeding is one to enforce a right arising from a contract
We do not refer to them
In Kottamasu Sreemannarayanamuthy and another vs Chakka Arjanadu a petition for adjudication of a partner as insolvent was held to be a right arising not from a contract but from statute
Here the right that is being enforced through the medium of the arises from the contract between the parties and is a part of it
In Jamal vs Firm Umar Haji Karim 4  the bar of section 693 was claimed during the execution of a consent decree and was disallowed
Grille C J observed that the expression other proceeding  indicated something which was sui generis of a claim of set off 
If the partners of an unregistered firm
go to court without either asking for a dissolution of the firm or dissolving it themselves and enter into an agreement and compose their differences it is possible to say that the enforcement of the consent decree is no more than the enforcement of a right arising from a contract and is within the ban
It is however not necessary to decide this point here
in Ram Lal Harnam Das vs Pal Krishan and others it was expressly pointed out that the expression other proceeding  in the third sub section applied to proceedings of the nature of a claim of set off and nothing else
This case cannot be said to interpret the sub section correctly
Similarly Mahendra vs Gurdeyal  which lays down that section 69 does not bar a partner of an unregistered partnership firm from applying to the court under section 8 of the for referring the dispute 1 ATR 3 AIR 1939 Mad
5 AIR 1917 Punjab 159
2 Ar
R 4 ILR 6 ILR 30 Pat
109 60 between partners to arbitrator as provided in the condition of their agreement cannot be accepted as sound
The reason given by the Divisional Bench that as section 69 allows dissolution and accounts of unregistered partnership it cannot bar such an application appears to us to be not quite in Point
In our judgment the words other proceeding  in sub section 3 must receive their full meaning untramelled by the words a claim of set off 
The latter words neither intend nor can be construed to cut down the generality of the words other proceeding 
The sub section provides for the application of the provisions of sub sections
1 and 2 to claims of set off and also to other proceedings of any Kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub section
3 and sub section
The appeal is therefore allowed
The decision of the High Court will be set aside and the application under section 82 of the shall stand dismissed with costs throughout on the applicant in the High Court


Summary:
The respondent entered into a partnership agreement with the appellant
But this was not registered
There was an arbitration clause sti 51 pulating that in case of dispute the matter will be referred for arbitration in accordance with 
Dispute having arisen between the respondent and the appellant the former wrote to the latter stating that the dispute be referred for arbitration and that the respondent has appointed one K as the sole arbitrator
On the failure of the appellant to agree to this the respondent filed an application under section 82 of the Indian for the appointment of arbitrator
The application was heard by a Division Bench of the High Court before which the appellant contended that section 693 of the afforded a bar to the petition because the partnership was not registered
One of the Judges upheld the contention while the other rejected it and the matter was referred to another Judge who held that the application was competent
The present appeal was filed by special leave granted by this Court
HELD i Thai since the arbitration clause formed a part of the agreement constituting the partnership it is obvious that the proceeding which is before the Court is to enforce a right which arises from a contract
Whether one views the contract between the parties as a whole or one views only the arbitration clause it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the agreement of the parties
The words of section 693 a right arising from a contract are in either sense sufficient to cover the present matters
ii Interpretation ejusdem genuris or noscitur a sociis need not always be made when showing particular classes are followed try general words
Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted
The expression claim of set off does not disclose a category or a genus
Set offs are of two kinds legal and equitable and both are already comprehended and it is difficult to think of any right arising from a contract  which is of the same nature as a claim of set off and can be raised by a dependent in suit
Allen vs Emerson  referred to
Hafiz Qamar Din vs Nur Din AIR 1936 Lah
136 Babulal Dhan Dhania vs Ms Gautam  Co AIR 1950 Cal
341 Kottamasu sreemannarayanmurthy vs Chokka Arjanadtu AIR  Jamal vs Firm Umar Haji Karim ILR  and Ram Lal Harnam Das Y Bal Kishan AIR 1957 Punj 159 distinguished
iii The words other proceeding in sub section 3 must receive their full meaning untramelled by the words a claim of set off
The latter words neither intend nor can be construed to cut down the generality of the words other proceeding
The sub section provides for the application of the provisions of sub sections 1 and 2 to claims of set off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in subsections 3 and 4