1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR MISC. CIVIL APPLICATION NO. 528 OF 2009 1. SHRI VIVEK S/O RAMKRISHNA GANESHE R/O SAHAYOG APT, WARDHA RD, NAGPUR .. PETITIONER/S VERSUS 1. SANJAY S/O WASUDEO JOSHI R/O AKAR NGAR, NR. FRIENDS COLONY, NAGPUR .. RESPONDENT/S Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri Amit Khare Adv for applicant. Shri Chavhan Adv for non applicant. CORAM: C. L. PANGARKAR J. Dated: 17 th DECEMBER, 2009. Heard counsel for the applicant and the respondent. 2. This application has been filed under Section 11 of the Arbitration and Conciliation Act. Parties to the petition were 2 partners of the partnership firm known as M/s Neutra Asia. One of the conditions of the deed of partnership was that if any dispute arises between the partners with regard to the terms of the partnership the same would be required to be referred to the Arbitrator. 3. It appears that the dispute arose between the parties. Since such dispute arose between the parties application was filed before the District Judge under Section 9 of the Arbitration Act. The said application was heard by the learned District Judge and he allowed the application and passed the order restraining the present respondent No.1 from manufacturing and selling the product Pregmom. He also directed the applicant to appoint Arbitrator for deciding the dispute between the parties. This order came to be passed on 17.03.2009. 4. After the said order came to be passed by the learned District Judge the applicant issued a notice on 18.4.2009 requesting the non applicant to refer the dispute to the Arbitrator and accordingly proposed the name of one Shri S. S. Rao as an Arbitrator. Non applicant did not act in pursuance to this notice 3 and therefore this application has been filed. 5. I have heard the learned counsel for the applicant and the respondent. Learned counsel for the applicant contended before me that the partnership deed contains the agreement that if any dispute arises the same would be referred to the Arbitrator and accordingly a notice has been issued to the non applicant for appointment of the Arbitrator. He submits that this is was enough compliance and the Court should accordingly appoint an Arbitrator. He also submits before me that there is a live dispute between the parties and therefore there is no impediment infact in making the appointment of the Arbitrator. 6. Non applicant had in fact sent a reply to the said notice rejecting the request for appointment of the Arbitrator. Non applicant’s counsel submits before me that notice itself is defective inasmuch as it does not call out what is the dispute between the parties nor does it make a reference to the arbitration agreement nor does it make a reference to arbitration clause in the partnership deed. After having gone through the said notice I find that notice has been issued by the present applicant on the basis of the 4 directions given by the District Judge. A direction given by the District Judge could hardly be a ground for seeking a reference to the arbitration. Notice should have in fact stated that because there is a dispute and partnership deed contemplates that matter is required to be referred to the Arbitrator that such notice is being given. In the circumstances I find that notice as issued by the present applicant is defective inasmuch as the arbitration is not sought on the basis of the partnership agreement and on the basis of the dispute that may be existing between the parties. In view of this application stands rejected. However the applicant is at liberty to issue fresh notice if the applicant so desires and may institute fresh proceeding. JUDGE svk 5 6 7