Arb.P. 18/2009 BEFORE HON’BLE THE CHIEF JUSTICE MR. R.S.GARG Heard Mr R Islam, learned counsel for the petitioner and Ms K Da s, learned counsel for the respondent No.6. None has appeared for the other resp ondents. 2. The petitioner has come to this court under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of arbitrators in refere nce to the agreement dated 8.11.2005 and yet another agreement which was also ex ecuted on 8.11.2005. The submission of the learned counsel for the petitioner is that a perusal of paragraph 26 of the first agreement clearly shows that any di spute or difference in regard to the terms of clauses of the agreement or any di spute or difference is to be referred to the arbitrators and as the first party, namely, M/s Royal Construction has refused to honour the agreement and refer th e matter to arbitration, this Court should interfere in the matter. It is also s ubmitted that paragraph 14 of the second agreement would also constitute a valid agreement between the parties and as the land is not being sold to the petition er this Court should refer the matter to arbitration. 3. It is contended by the learned counsel for the petitioner that f rom the affidavit filed by the respondent No.6, it would clearly appear that the y had entered into some agreement with M/s Royal Construction in the year 2000, they should also be asked to join the arbitration proceeding. On notice, respond ent Nos. 1 to 5 did not appear before us. However, respondent No.6 appeared befo re us and filed the affidavit. It is contended in the said affidavit that M/s Ro yal Construction which was a registered partnership firm and had also entered in to an agreement for construction etc. with Kamakhya Choudhury was dissolved in t he year 2002 and despite repeated reminders the said company was not ready and w illing to perform their part of the agreement. Therefore, they had to file a civ il suit and after taking possession of the unfinished building they are proceedi ng with the construction of the building. It is submitted by them that as they a re continuing with the construction they cannot be compelled to join the arbitra tion proceeding. 4. The learned counsel for the petitioner in reply submitted that f rom a perusal of the first agreement dated 8.11.2005 it would appear that M/s Ro yal Construction through Sri Amar Bhushan Dev was acting as the attorney of Smt . Sushma Bose and Sri Kamakhya Choudhury. Therefore, each and every act of Sri A mar Bhushan Dev would bind Smt. Sushma Bose and Sri Kamakhya Choudhury. It is al so contended that if the construction work has been taken over by Sri Kamakhya C houdhury and Smt. Sushma Bose then the said respondent Nos. 6 and 7 should be he ld answerable to pay the money back to the petitioner. 5. I have heard the learned counsel for the parties. 6. The second agreement which is entitled as Agreement for Sale of Land in paragraph 14 provides that in case of any dispute and differences bet ween the parties touching this agreement, they may, if both of them mutually des ire to settle the same by, take recourse to arbitration under the provisions of the Arbitration and Conciliation Act, 1996 . The above quoted language of Clause 14 in itself is not a complete agreement to refer the matter to the arbitrator. If the parties had agreed in the said document to refer the matter to the arbit rator then obviously the said Clause 14 could be termed to be an agreement for r eference. The language employed in Clause 14 simply shows that if the parties mu tually agree to settle a dispute then they may take recourse to arbitration unde r the provisions of the Arbitration and Conciliation Act, 1996. Unfortunately, t he petitioner nowhere said that after execution of the second agreement relating to sale of land the parties ever agreed to settle the matter through the agency of arbitrators. In absence of an appropriate agreement to refer, I am unable to hold that Clause 14 of the second agreement is a valid clause for reference. 7. The prayer of the petitioner to refer the matter to arbitrator i n relation to the dispute relating to sale of land for the reasons aforesaid can not be accepted and the matter cannot be referred to arbitration. 8. It is to be seen from Para (xviii) of the reply filed by the res pondent No.6 that the deed of partnership between the partners constituting M/s Royal Construction was dissolved with effect from 31st October, 2002 as Sri Apu Mazumdar, Sri Dhiren Ch. Kalita, Sri Babul Das and Sri Amar Bhushan Dev had dec ided to dissolve the partnership. Sri Apu Mazumdar had accepted all the assets a nd liabilities of the firm on its dissolution. Undisputedly, it is now undispute d case of the parties that M/s Royal Construction which was a partnership firm b ecame a proprietorship firm of Sri Apu Mazumdar. Undisputedly also, the agreemen t between the petitioner and the respondent No.6 was entered into on 8.11.2005, i.e. after dissolution of the partnership firm. Order XXX of the Code of Civil Procedure refers to suits by or against firms and persons carrying on business i n names other than their own. Rule 1 to Rule 9 refer to a partnership firm while Rule 10 refers to suit against a person carrying on business in name other than his own. In case of a partnership firm the particular Rule is to be observed an d similar Rule would apply in case of a person who carries on business in some d ifferent name. In the present matter, after dissolution of the partnership firm if the firm became a proprietorship firm then it has to be held that Sri Apu Maz umdar was carrying on business in some name other than his own name or to say i n technical terms that the firm became a proprietorship firm under the ownership of Apu Mazumdar. When somebody carries on business in some name other than his own then such firm or joint Hindu undivided family etc. are required to be repre sented by a person who can properly represent such proprietorship firm or Hindu undivided family or so. In the present matter, as would be apparent from the cau se title that the respondent No.1 is shown as a registered firm under the Firm a nd Societies Act which would mean that it is a partnership firm. It has to be no ted that after 2002 M/s Royal Construction could not continue as a registered pa rtnership firm and for that reason we have to hold that the respondent No.2, Sri Dhiren Ch. Kalita; respondent No.3, Sri Bijan Dev; respondent No.4 Dhiren Ch. K alita and respondent No.5 Amar Bhushan Deb could not be joined as parties in the ir position of or status of a partner. Joining of respondent Nos. 2 to 5 is abso lutely bad in the light of dissolution of the partnership firm. 9. Even when the judgment was under dictation, the learned counsel for the petitioner submitted that such dissolution would not adversely affect th e right of the petitioner because he came to know about the dissolution in 2009 only. I am shocked and surprised to hear the argument. Whether there was a part nership or not is a question of fact. If the petitioner did not know about disso lution of the partnership the petitioner cannot be allowed to say that because h e came to know about the dissolution in the year 2009 he would be justified in s aying that he entered into an agreement with the partnership firm in the year 20 05. It may be a case where fraud was played upon the petitioner but that does no t mean that a partnership firm which was not in existence in 2005 can be held li able. If such a course is adopted then the Court will have to hold that despite dissolution, qua the petitioner the partnership continued beyond the year 2002 e ven when the firm was dissolved. Nobody knew that somebody would enter into an a greement with the petitioner in the year 2005. If all persons had retired from t he partnership firm making Sri Apu Mazumdar as the sole proprietor then the othe r partners cannot be held liable for any act of any person conducting business i n the name and style of M/s Royal Construction. It was contended that because th e first agreement shows that there was a power of attorney executed by Kamakhya Choudhury and it was revoked in the year 2009, this Court should hold the respon dent No.6, Kamakhya Choudhury responsible to pay the loss to the petitioner. In absence of such power of attorney on record, I am unable to hold that the person who entered into agreement in the year 2005, in fact, was authorized to enter i nto the said agreement. Unless the said terms are brought on record it would not be possible for this Court to hold that Kamakhya Choudhury allowed Sri Amar Bhu shan Dev to enter into an agreement in the name of M/s Royal Construction with t he present petitioner. 10. It was contended that subsequent to the dissolution of the partn ership firm it was reconstituted and some partners were also added to it. Unfort unately, there is nothing on record to show that on what date a new partnership firm was constituted, whether the new partners accepted all the assets and liabi lities of the proprietorship firm M/s Royal Construction. Though it is proved on record that there is an agreement between M/s Royal Construction and the petiti oner to refer the matter to the arbitrators, it is not proved on record that Sri Amar Bhushan Dev was entitled to enter into an agreement with the petitioner in the name and style of M/s Royal Construction. 11. For the reasons aforesaid, I am unable to hold that the present is a fit case for making a reference or for appointment of Arbitrator. 12. The application is dismissed.