A.No.3765 of 2009 and O.A.No.105 of 2010 G.RAJASURIA, J. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of these two applications would run thus: (a) A.No.3765 of 2009 has been filed seeking the following relief: - To appoint an Advocate Commissioner to visit the registered office off the 1st respondent firm at No.22, Old No.38, III East Street, Kamarajar Nagar, Thiruvanmiyur, Chennai 600 041, Factory premises at Manapet, Bahoor Commune, Pondicherry and Branch office at No.17, Shanmugam Road, Vilva Nagar, Manjakuppam, Cuddalore  1 and to take inventory of bill books, day books and ledgers of accounts, invoices and files, licence files relating to Pollution control, ESI, PF, Employees under factory ac and other labour laws, sales tax and income tax files, delivery registers, inward and outward gate pass registers, production charts, labour contract files, suppliers contract files, bank loan files and bank pas books with transaction details, stocks of finished goods, raw materials, goods in process and all other relevant details communications and records of the business and to submit a report to this Hon'ble Court so as to secure and protect the interest of the partners in general and the applicant as a partner in particular in the partnership business of the 1st respondent firm as an interim measure before arbitration proceedings as provided under section 9(ii) (a), 9(ii) (b), 9(ii) (c) of the Arbitration and Conciliation Act, 1996 pending disposal of arbitration proceedings. (extracted as such) (b) O.A.No.105 of 2010 has been filed seeking the following relief: - To pass an interim injunction by restraining the 1st and 2nd respondents from interfering with the banking operation of the applicant in its Cash Credit Account No.4757 held in Indian Overseas Bank, Indira Nagar Branch, Adyar, Chennai 600 020 by permitting the 1st applicant herein to sign the cheques and operate the account subject to such directions of this Hon'ble Court. (extracted as such) (c) Counters have been filed by the respondents concerned in the respective applications, disputing and gainsaying, refuting and denying the averments in the affidavits accompanying the applications. 2. The points for consideration are as to: 1. Whether the applicant in A.No.3765 of 2009 is entitled to get a Commissioner appointed for the purpose which is found spelt out in the said application? 2. Whether the applicants in O.A.No.105 of 2010 are entitled to get an injunction as prayed for? 3. The gist and kernel, the pith and marrow of the relevant facts would run thus: (a) There emerged a partnership among four persons, namely, Ramachandran, Valavan @ Thirumavalavan, Jayaraman and Ravi kumar, vide partnership deed dated 15.12.2004. The purpose of the partnership was to run a factory relating to manufacture of stone pipes. According to Ramachandran, the said partnership got dissolved under certain terms and conditions and it was reconstituted on 05.02.2009 having the following persons as partners: 1. S.Ramachandran 2. V.Banumathi, w/o erstwhile partner, namely Valavan 3. R.Nalini, W/o the said Ramachandran; and 4. S.Ravikumar, who happened to be the partner in the earlier partnership also. (b) While so, according to Ramachandran, the said Valavan and his kith and kin indulged in activities which were detrimental to the smooth running of the newly constituted partnership. However, it is the contention on the side of Valavan and his kith and kin that the said Ramachandran siphoned off the funds of the partnership and he is having a separate proprietary concern called Keyem Engineering Enterprises and with that he siphoned off the funds of the partnership and thereby depriving the right of Valavan and his kith and kin. 4. Tersely and briefly, the arguments of Mr.R.Thiagarajan, the learned counsel for the applicants in O.A.No.105 of 2010 and for Respondents 1 and 2 in A.No.3765 of 2009 and would run thus: (a) Section 9 of the Arbitration and Conciliation Act, (for short 'the Act') cannot be pressed into service at all by Valavan, for the reason that he ceased to be a partner and if at all he is having any right, he ought to have filed a civil suit seeking remedy. A partner who ceased to be a partner in a running partnership cannot invoke Section 9 and get any interim order. (b) Valavan also cannot ask for rendition of accounts in his A.No.3765 of 2009 under Section 9 of the Act. Disputed questions of fact cannot be gone into by this Court while exercising its jurisdiction under Section 9 of the Act. The said Valavan cannot try to cull out evidence by invoking Section 9 of the Act. Section 37 of the Indian Partnership Act is explicitly clear that a partner of a dissolved firm could claim rights only under that Section and not under Section 9 of the Arbitration and Conciliation Act. Order 26 Rule 11 of CPC or any other provision relating to appointment of Commissioner cannot be invoked by Valavan. The said Valavan siphoned off the money of the partnership and in respect of it a complaint also was given by Ravichandran and it is pending. (c) Valavan's wife, Banumathi has been graciously inducted into the reconstituted partnership only by way of giving succor to Valavan's family and such act of benevolence was misused by Valavan and he has gone to the extent of throttling the very business conducted by Ramachandran and his wife, who are 80% shareholders in the reconstituted partnership. (d) Valavan and his kith and kin went to the extent of informing the Bank and other authorities as though Ramachandran and his kith and kin in the partnership are indulging in illegal activities and also producing substandard products etc., and unless they are injuncted from resorting to such measures, the factory would come to a stand still. The statutory obligations also have to be fulfilled by Ramachandran, as he happened to be the Managing Partner of the said reconstituted partnership firm. Because of the non co-operative attitude of Ravikumar, both could not sign the cheque and that alone actuated and accentuated, propelled and impelled him and others to file O.A.No.105 of 2010. Accordingly, he prays for dismissing A.No.3765 of 2009 and for allowing O.A.No.105 of 2010. 5. Tour d'horizon of the learned counsel for the applicant Mr.N.S.Nandakumar in A.No.3765 of 2009 and also Ms.T.Girija, the learned counsel for R3 and R4 in A.No.3765 of 2009 and for R2 in O.A.No.105 of 2010 would run thus: (a) Under misrepresentation, the alleged expulsion of Valavan took place and the alleged reconstituted deed dated 05.02.2009 emerged. At one point of time, a consensus has been arrived at and it was promised by Ramachandran and his kith and kin that accounts of the partnership would be taken and in that, the due share of Valavan would be given, but to Valavan's shock and surprise, no such accounting took place of the partnership which emerged under the partnership deed dated 15.12.2004. Whereupon only, Valavan has been constrained to treat the said expulsion as non est in the eye of law and to claim that he continues to be a partner and the so called reconstituted partnership is nothing but an eye wash. By way of camouflaging and concealing Ravichandran's malafide intention, such reconstitution deed dated 05.02.2009 emerged. (b) In fact, it is Ramachandran who siphoned crores of amounts of the partnership with the help of his proprietary concern K.M.Engineering. An agreement no doubt emerged on 30.05.2009 among four persons, namely S.Ramachandran, S.Ravikumar, R.Nalini and V.Banumathi, and as per which Ramachandran and Ravikumar were authorised to sign jointly the cheques and operate the accounts of the partnership. But Ravichandran had a volte face and turned turtle and expelled Ravikumar from participating in the business. Ramachandran concentrated only in amassing wealth for himself to the detriment of others. In a partnership firm, one partner is an agent of another partner, and by no stretch of imagination, injunction as prayed for could be granted. (c) As per Section 37 of the Indian Partnership Act, a partner is entitled to claim his due share in the existing partnership or in the reconstituted partnership and that is explicitly clear and in such a case, the prayer of Valavan in his A.No.3765 of 2009 to protect the accounts could never be stated to be beyond the scope of Section 9 of the Arbitration and Conciliation Act, 1996. (d) In the earlier partnership deed dated 15.12.2004 and in the reconstituted deed dated 05.02.2009, the relevant arbitration clauses would contemplate all disputes, which term would connote and denote not only disputes emerging among partnership during the existence of a partnership, but even after dissolution and any of the aggrieved partner could get the dispute resolved by invoking the arbitration clause. (e) Even for argument sake it is taken that the earlier partnership is no more in existence and in its place the reconstituted partnership is existing, still Valavan is having the right of seeking for accounts. On the one hand, Valavan invoked Section 9 of the Arbitration and Conciliation Act and on the other hand, Ramachandran and his kith and kin invoked Section 9 of the Act. Accordingly, they pray for allowing his A.No.3765 of 2009 and for dismissal of O.A.No.105 of 2010. POINT NO.1: 6. The learned counsel for Ramachandran and others cited the following decisions: (i) 1952 PATNA 271  SASANKA SEKHAR PAL AND OTHERS V. DINANATH GORAIN AND OTHERS, certain excerpts from it would run thus: "7. ....It is clear from the passage quoted above that the Judge has delegated a judicial function to the commissioner in that he has left it to the commissioner to determine the prevailing rate and decide whether the plaintiffs are entitled to claim commission at the reduced or increased rate. Such delegation is not permissible in law. Under Order 26, Rule 9, or under any other provision of the Code of Civil Procedure, a Court cannot appoint a commissioner to discharge a judicial function. In 'UGRA NARAIN CHOUDHARY V. HARIBANS CHOUDHARY', 11 Pat L T 456, Das, J., held that a judge cannot delegate any of his functions to a commissioner. The judicial Committee also in 'RAM KRISHNA V. RATAN CHAND', 58 Ind App 173 at p.181 (PC) observed that an order of the High Court appointing a commissioner to examine the books of business and to report whether it was of a gambling nature was not warranted by law and the question was one which could not safely be left to be determined by him. The order of the learned Subordinate Judge is, therefore, wrong. He must determine the liability of the defendants himself on such evidence as may be adduced in this connection. He may, however, for the sake of convenience appoint a commissioner to examine witnesses, hold local investigations or examine accounts and ask him to submit a report but the decision on the point must be given by him and not by the commissioner. The judgment of the learned Subordinate Judge on this point must, therefore, be set aside and the case must go back to the trial Court for a determination of the liability of the defendants in accordance with law." (ii) AIR 1916 BOM 181  LAXMIBAI V. HUSAINBHAI AHMEDBHAI, an excerpt from it would run thus: "4. The Commissioner, however, expressed the opinion that under the said reference he had power to go into the questions even though they involved questions of law or of mixed law and fact. Whereupon defendants 6and 7 moved before me for an order that directions should be given to the Commissioner that it was not open to him to determine the objections of the plaintiffs in the accounts brought in by the 6th and 7th defendants challenging the right of the original defendant to have credit in the account for ground-rent and insurance premia paid by him, and that the decretal order of reference did not give him any power authorising him to decide the said questions and, in the alternative, that, if in the opinion of the Court it was still open to the plaintiffs to raise the objections, the same should be tried by the Court." (iii) (1977) 1 SCC 367  DALHOUSIE PROPERTIES LTD. V. SURAJMULL NAGARMULL, an excerpt from it would run thus: "3. .......The suit was however decided on April 18, 1962 without disposing of the plaintiff's aforesaid application under Order XXVI, Rule 9 of CPC. It may be that the trial Court had in view Form 23 of Appendix D of the Code of Civil Procedure which shows [in paragraph (3)] that a trial Court may grant a decree to the effect that an inquiry be made as to the amount of mesne profits from the institution of the suit until delivery of possession to the decree-holder, but at the time of deciding the plaintiff's claim in the suit, the trial Court did not order any such inquiry as it took the view that the rate of interest permissible under the Rent Act should determine the future mesne profits also. It is therefore obvious that the trial Court went wrong in denying the plaintiff an opportunity to prove the amount of mesne profits from the date of the institution of the suit until delivery of possession. The High Court did not correct the error while examining the plaintiff's appeal and laboured under the mistaken impression that the plaintiff did not make any attempt to give evidence on the point during the course of the trial. That was obviously a mistake as the High Court failed to notice that the plaintiff had in fact been prevented from proving its claim for mesne profits at the "present rental value". (iv) AIR 1963 BOM 59  BIHARILAL RAMCHARAN COTTON MILLS LTD. V. CHINA COTTON EXPORTERS, an excerpt from it would run thus: "5. Now, Order 26, rule 11 of the Code of Civil Procedure provides for the issue of a commission to such person as the Court thinks fit directing him to examine or adjust accounts in any suit in which an examination or adjustment of accounts is necessary. My attention was not drawn to any rule made by the High Court on its Original Side which contemplates the issue of such commission or the appointment of a commissioner for examining or adjusting accounts in any suit. ...." (v) AIR 1989 ORISSA 118  BASANTA KUMAR SWAIN V. BAIDYA KUMAR PARIDA AND OTHERS, an excerpt from it would run thus: "2. There can be no doubt that O.26, R.9, C.P.C., empowers a Court to depute a civil court commissioner for local investigation in a suit if he deems it requisite or proper for the purpose of elucidating any matter in dispute. See (1987) 63 Cut LT 630: (AFIR 1988 Orissa 52) (Chaitan Das v. Smt. Purnabasi Pattnayak). Wide discretion is vested in the Court for the purpose as is clear from the plain language of the rule. Wider the power, greater should be the restraint. Therefore, the discretion is to be exercised judicially. Once it is a discretion of the Court, the facts and circumstances of the case should be carefully considered to examine if it is a just occasion for exercise of the discretion. 4. The object of O.26, R.9, CPC is not to assist a party to collect evidence where it can get the evidence itself. The object is for elucidating any matter in dispute by local investigation at the spot. Where on the evidence of experts on record, the Court is satisfied that for appreciating the opinion of the expert evidence, it should appoint an expert as commissioner, it can on the facts and circumstances of the case, appoint a commissioner...." (vi) AIR 2004 ORISSA 86  MADHU SUDAN PRADHAN AND OTHERS v. SANTOSH KUMAR DAS, an excerpt from it would run thus: "5. Learned counsel for the petitioners argues that unless a Survey Knowing Commissioner is deputed, the actual state of affair relating to the occupation and improvement cannot be ascertained by the Court on the basis of available evidence and, therefore, a Survey Knowing Commissioner be deputed. The aforesaid argument is heard to be rejected in as much as it has been rightly commented by the Court below that it would amount to collecting evidence on behalf of the petitioners. When the relevant issue is as to whether the agreement for sale is valid or sham and nominal, evidence in proof and against that issue can be tendered by the parties. Plaintiffs, if want to adduce evidence relating to the claim of delivery of possession of the suit land, what was its condition on the date of such delivery of possession whether there has been any improvement made of the suit house, who has made the same and, if so, what is the amount spent, what damage has been sustained etc., then he may place relevant evidence before the trial Court. Any of such matter, as it now appears, does not require local investigation by a Survey Knowing Commissioner. The evidence, which petitioners want to produce before the Commissioner for the purpose of that investigation, may be produced by them before the trial Court. A Survey Knowing Commissioner need not be deputed to ascertain and report as to who is in possession and whether he has effected improvement of that property." (vii) (2004) 3 SCC 155 (Firm Ashok Traders and another) vs. Gurumukh Das Saluja and others), an excerpt from it would run thus: 13. ................................... "The qualification which the person invoking jurisdiction of the court under Section 9 must possess is of being a party to an arbitration agreement. A person not party to an arbitration agreement cannot enter the court for protection under Section 9. This has relevance only to his locus standi as an applicant. This has nothing to do with the relief which is sought for from the court or the right which is sought to be canvassed in support of the relief. The reliefs which the court may allow to a party under clauses (i) and (ii) of Section 9 flow from the power vesting in the court exercisable by reference to contemplated, pending or completed arbitral proceedings. The court is conferred with the same power for making the specified orders as it has for the purpose of and in relation to any proceedings before it though the venue of the proceedings in relation to which the power under Section 9 is sought to be exercised is the Arbitral Tribunal. Under the scheme of the A&C Act, the arbitration clause is separable from other clauses of the partnership deed. The arbitration clause constitutes an agreement by itself. In short, filing of an application by a party by virtue of its being a party to an arbitration agreement is for securing a relief which the court has power to grant before, during or after arbitral proceedings by virtue of Section 9 of the A&C Act. The relief sought for in an application under Section 9 of the A&C Act is neither in a suit nor a right arising from a contract. The right arising from the partnership deed or conferred by the Partnership Act is being enforced in the Arbitral Tribunal; the court under Section 9 is only formulating interim measures so as to protect the right under adjudication before the Arbitral Tribunal from being frustrated. Section 69 of the Partnership Act has no bearing on the right of a party to an arbitration clause to file an application under Section 9 of the A&C Act." (viii) (2009) 1 SCC 475 (Speech and Software Technologies (India) Private Limited vs. Neos Interactive Limited), an excerpt from it would run thus: "11. By now it is well settled that exercise of power under Section 11(6) of the Act is judicial power. After the decision of this Court in SBP and Co. v. Patel Engg.Ltd., the Designated Judge has to consider the claim of both the parties to the matter and pass a reasoned order. It is also well settled that existence of arbitration agreement is a condition precedent before exercise of powers under Section 11 (6) of the Act. The preliminary matters to be considered by the court are : (1) existence of arbitration agreement, (2) territorial jurisdiction, (3) whether there are live issues to be referred to the arbitrator and (4) whether application is filed within the period of limitation prescribed by the law. If the court finds that the arbitration agreement does not exist or is rescinded then the prayer for referring the dispute to the arbitrator will have to be rejected." (ix) 2006 (3) R.A.J.171 (Ker) (Shoney Sanil vs. M/s.Coastal Foundations (P) Ltd., and others, an excerpt from it would run thus: "6. ......For appreciating the scope of Section 9, the term 'party' has to be understood, following the definition of the said term in Section 2 (1) (h),which states that unless the context otherwise requires 'party' means a party to an arbitration agreement. .................................... Therefore, only a party to the arbitration agreement can apply to a court invoking Section 9, which consists of two parts. Section 9(i) deals with appointment of a guardian for a minor or a person of unsound mind for the purpose of arbitrary proceedings. Section 9(ii) enumerates five types of interim measures of protection in respect of the matters enumerated in clauses (a) to (e) of Section 9(i). ......................................." (x) 2007(2) R.A.J. 674 (Bom) (Masood Mohmmed Husain vs. Gulam Rasul Mohammed Ali Shaikh and others), an excerpt from it would run thus: "13. ..................................................................... in our considered view the opinion that an application under Section 9 of the Arbitration and Conciliation Act, is neither in a suit nor a right arising from a contract is founded on a sound legal principle that a right arising from a partnership deed or conferred by the Partnership Act is enforced in a arbitral tribunal and the court under Section 9 is only formulating interim measure so as to protect the right before the arbitral tribunal from being frustrated. For consideration of the application under Section 9, we that the Court can use this decision as a precedent guiding the courts the course to be adopted confronted with a situation like an application under Section 9 of the Arbitration and Conciliation Act being moved by a partner of an unregistered firm". (xi) 2008(1) R.A.J.474 (Cal) (Raj kumar Sharma vs. Prasanta Kumar Chandra and Others), an excerpt from it would run thus: "5. An application under Section 9 of the said Act is not a suit, though such application results in initiation of civil proceedings. The right conferred by Section 9 is on a party to an arbitration agreement. The time or the stage for invoking the jurisdiction of court under Section 9 can be (i) before, or (ii) during arbitral proceedings, or (iii) at any time after making of the arbitral award but before it is enforced in accordance with Section 36. The relief sought for in an application under Section 9 is neither in a suit nor a right arising from a contract. The right arising from the partnership deed or conferred by the partnership Act is being enforced in the arbitral tribunal, the court under Section 9 is only formulating interim measures, so as to protect the right under adjudication before the arbitral tribunal from being frustrated. Section 69 of the Partnership Act has no bearing on the right of a party to an arbitration clause to file an application under Section 9 of the Arbitration and Conciliation Act, 1996 as was held in the case of Firm Ashok Traders." 7. I would like to observe that absolutely there could be no quarrel over such a proposition. This Court itself in a catena of decisions held that Commissioner cannot be used purely for the purpose of gathering evidence by one party as against another party. The decisions cited and more specifically the excerpts extracted supra would clearly highlight that under Section 9 of the Arbitration and Conciliation Act, the Court cannot order for accounts to be