1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2038 OF 2009 WITH NOTICE OF MOTION NO. 2334 OF 2009 IN SUIT NO. 1362 OF 2009 Girdharilal N. Dusija & Ors. ... Plaintiffs. V/s. Anil G. Dusija. ... Defendant. Mr. J.P. Sen a/w. Preeti Shah for the Plaintiffs and in support of NM 2038 of 2009. Mr. Farhan Dubhash i/b. Federal & Rashmikant for the Defendant and in support of NM 2334 of 2009. CORAM : S.C. DHARMADHIKARI,J. DATED : 9th DECEMBER 2009. P.C. :- This is a Notice of Motion under Section 8 of the Arbitration and Conciliation Act, 1996 by the Defendant, who prays that the dispute raised in the Suit be referred to Arbitration in accordance with Clause 21 of the Deed of Partnership dated 21st July 2005. In other words, this is an application under the aforementioned provision of the Arbitration and Conciliation Act, 1996. 2. In the affidavit in support it is contended that parties are family members. They have executed a partnership deed on 21st July 2005 for carrying on business in the name and style more particularly referred to in the deed. 2 3. Clause 21 of the said deed reads as under :- “ All disputes and differences whatsoever which may arise either during the subsistence of the partnership, or after the dissolution thereof, between the parties hereto or their respective representatives or between any partner and the legal representatives of the other partner touching these presents or the construction or application of any clause or thing therein contained or touching any account, valuation or division to be made hereunder or as to the rights, duties, liabilities or obligations of the parties hereto or touching the affairs of the said Firm, however, shall be resolved by reference to Arbitration of a single Arbitrator if the parties agree upon one or to three Arbitrators one each to be appointed by the two Arbitrators in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996, or any statutory modification or enactment thereof for the time being in force and the Award or Awards of such Arbitrator(s) as the case may be shall be binding on all parties to the said dispute.” 4. The instant Suit is filed for dissolution of the firm and it is urged that all ingredients of Section 8 are satisfied. Once they are so satisfied, then, the Court has to refer the matter to 3 arbitration. 5. As far as the Plaintiffs who are opposing this application are concerned, it is urged that though there are documents and deeds executed containing the arbitration clause, yet, there are no disputes which can be referred to arbitration. It is urged that the Defendant, who had made this application admits that the partnership is at Will. The shares of partners are accepted and further the parties are agreeable to have a preliminary decree passed dissolving the firm. Therefore, where some minor areas of the dispute are allegedly projected, the matter cannot be referred to arbitration. 6. Section 8 of the Arbitration and Conciliation Act, 1996 reads as under :- “8. Power to refer parties to arbitration when there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) Notwithstanding that an application has been made under sub-Section (1), and that the 4 issue is pending before the judicial authority an arbitration may be commenced or continued and an arbitral award made.” 7. A bare perusal of this Section would indicate that the judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement, shall if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. It is not the case of the Plaintiffs that the action which is brought is not a matter concerning the partnership deed. They agree that all parties to the deed are before the Court as parties to the Suit. They have also agreed that the Defendant had not submitted his first statement on the substance of the dispute. In these circumstances, and when both sub-Sections 1 and sub-Section 2 of the Act are attracted, there is no alternative but to allow this Motion and it is accordingly made absolute in terms of prayer clause (a). 8. Since Notice of Motion No.2334 of 2009 is made absolute and the parties are referred to arbitration, then, the other Notice of Motion preferred by the Plaintiff being Notice of Motion No.2038 of 2009 does not survive. However, to enable parties to adopt appropriate interim measures, the ad-interim order dated 8th May 2009 made in this Motion shall continue for a period of eight weeks from today. 9. By consent of parties, Mr. S.H. Doctor, a Senior Advocate, 5 practicing in this Court is appointed as a Sole Arbitrator to adjudicate on the disputes between parties. In the light of the appointment by consent, the Application made by the Plaintiff under Section 11 of the Arbitration and Conciliation Act, 1996 does not survive. (S.C. DHARMADHIKARI,J.)