1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2403 OF 2008 IN SUIT NO. 2012 OF 2008 Mohd. Zakir Hussain Abdul Bari Pradhan ........Plaintiff versus Haroon Habib Sunasara & ors........Defendants. Mr. H. Toor with S.B. Pawar & Ms. Swati Sawant & Subhash Bane adv. for the Plaintiff Mr. Devasis Kapari Shah i/b. Pementa Vapari &Co. adv. for the Defendant no.8. CORAM: A. P. DESHPANDE, J. DATED : 17th APRIL, 2009. P.C.: 1. The instant Notice of Motion is taken out in a suit filed by the plaintiff claiming himself to be a parter of an unregistered partnership firm by name “New Cafe Sahar”. According to the plaintiff, defendant nos. 1 to 12 are also the partners of the unregistered partnership firm. The present suit has been filed with a view to enforce the terms and conditions contained in an unregistered partnership deed. By the present notice of motion, reliefs are claimed aganst the other parners from parting with the physical possession and/or creating any third party interest in respect of the properties of the suit firm. The learned counsel for the defendant no.8 has raised a preliminary objection about the 2 maintainability of the suit in view of section 69(1) of the Partnership Act. Section 69(1) lays down that 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 Registrar of firm as a partner in the firm. In the present case, the plaintiff is seeking various reliefs by suing as a partner of an unregistered firm against the other partners viz. defendant nos. 1 to 12. The reliefs claimed in the present motion are also against the other person. In that view of the matter, primafacie the suit itself is not maintainable. It will not be out of place to mention that the learned counsel for the plaintiff on instructions from his client who is present in the court, has made a statement that the partnership firm is not registered with the Registrar of firms and the name of the plaintiff is not shown as a partner in the Registrar of firms. 3. The learned counsel for the defendant has raised yet another objection to the jurisdiction of this court by pointing out that in the partnership deed which is an agreement between the partners, there exists an arbitration clause and thus the jursidction of this court stands excluded by virtue of operation of section 8 of the Arbitration Act. Clause 16 of the partnership deed reads thus: 3 “16. All disputes arising between the partners or groups of partners and or between surviving partners on the one hand and the heirs and legal representative of any deceased partner on the other hand whether during the winding up of after its dissolution and winding up in respect of any right and/or remedies and/or interest and/or claims and/or matters of any of the partners and/or interest and/or claims and/or liabilities and/or surviving partners and/or heirs and legal representatives of deceased partners and/or delations to the interpretation and/or construction of this agreement or any of its provisions and/or any other act, deed, matters or things relating to concerned with or touching the partners and/or the firm shall be referred to arbitration by each party to the dispute appointing one Arbitrator to act for himself in each arbitration. The party or parties desire to go to Arbitration hereunder shall give to the other parties to disputes Thirty (30) days notice in writing intimating to them his or their desire to go to such arbitration. Before entering upon the reference to arbitration, the arbitration, the Arbitrators appointed by the parties hereto to dispute as provided in the Arbitration or the Award of the Umpire shall be conclusive and binding upon all the parties to the Arbitration and the same may be made rule of the court by any party if so desired. All arbitrators appointed by the parties hereto to dispute as provided in the Arbitration or the Award of the Umpire shall be conclusive and binding upon all the parties to the Arbitration and the same may be made rule of the court by any party if so desired. All arbitrations under this agreement shall be in accordance with the provisions of the Indian Arbitration Act or status governing Arbitration as may be in force from time to time. 4. On the plain reading of clause 16 leaves no room of 4 doubt that all disputes arising between the partners past or present need to be resolved by referring the dispute to the arbitraral tribunal. Reliance is placed by the learned counsel for the defendant no.8 in the case of Hindustan Petroleum Corpn. Ltd.Vs. M/s. Pinkcity Midway Petroleum reported in AIR 2003 SC 2881 and in Kvaerner Cementation India Ltd.Vs. Bajranglal Agarwal & anr reported in 2001 (6) Supreme 265, to contend lack of jurisdiction in this court to grant any relief to the plaintiff. Thus a prayer for rejection of the relief is made. As primafacie I am of the view that the suit itself is not maintainable and in view of the arbitration clause in the partnership deed, this court would be lacking in jurisdiction to grant any relief, I do not deem it appropriate to deal with the merit of the matter. In the result notice of motion stands dismissed. (A. P. DESHPANDE, J.)