IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 CRP.No. 51 of 2007() -------------------- AGAINST THE ORDER DATED 10/03/2006 IN IA.5268/05 IN OS.347/2005 of II ADDL.SUB COURT,KOZHIKODE .................... REVN. PETITIONER(S)/RESPONDENT/PLAINTIFF: ----------------------------------------- L.NAGESH, AGED 42 YEARS, S/O.LAKSHMAN PAI, "MUKUND", KASABA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENT(S)/PETITIONERS/DEFENDANTS: ------------------------------------ 1. K.ABDURAHIMAN HAJI, 52 YEARS, S/O.ABOOBACKER, "SHAHEENA MANZIL", VELIMUKU AMSOM DESOM, THIRURANGADI TALUK. 2. CHERIKURIAKOSE, 48 YEARS, W/O.KURIAKOSE, "ALSA PAMS DRINGS", NAGARAM AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.K.A.SALIL NARAYANAN FOR R1, 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.51 OF 2007 () ----------------------------------- Dated this the 17th day of February, 2010 O R D E R Petitioner is the plaintiff in O.S.No.347 of 2005 on the file of the Sub Court, Kozhikode. The above suit was one for money, and the respondents are the defendants. Suit claim was raised by the petitioner alleging that he was an erstwhile partner in two firms along with the defendants, and later, he retired from both the firms on the terms and conditions stipulated in an agreement entered by all the partners. Some claims were outstanding to be settled by the defendants as agreed to in the agreement is the basis for the suit claim. He also produced a photocopy of the agreement entered by him with the defendants. The defendants on entering appearance moved an application under Section 8 of the Arbitration and Conciliation Act, 1996, hereinafter referred to as the 'Arbitration Act', contending that there is an arbitration clause in the partnership deeds for resolving the disputes between CRP.51/07 2 the partners including the plaintiff. The defendants contending as above sought for rejection of the plaint. The learned Sub Judge, after hearing the counsel on both sides and perusing the copies of the partnership deeds Exts.B1 and B2 produced by the defendants and also copy of the agreement A1 produced by the plaintiff, concluded that arbitration clause contained in the partnership deeds will prevail and the suit by the plaintiff before the civil court is not entertainable. Observing that the parties have to pursue their remedy as per the arbitration agreement, the application moved by the defendants was allowed. 2. I heard the counsel on both sides. The relief canvassed by the defendants was for rejection of the plaint contending that there is an arbitration clause in the partnership deeds entered by the parties. It is seen the court below without looking into Section 8 of the Arbitration Act has allowed that application, which in effect, constitute the rejection of the plaint. Existence of an arbitration agreement in respect of a dispute canvassed before the court, subject to CRP.51/07 3 the conditions stipulated under Section 8 of the Arbitration Act, would result in passing of an order directing the parties to arbitration. But, such an order is not one of rejection of the plaint, but, only cessation or closing of the proceedings before the court. True, in the present Arbitration Act, there is no provision enabling the court to refer the parties to the arbitration. But even then the order passed by the court holding that the parties have to resolve their disputes by arbitration, in the event of an arbitration agreement between them, does not lead to rejection of the plaint, but only closing of the suit. Perusing the impugned order, it is seen, the court below has made some observations as regards the insufficiency of stamp in Ext.A1 agreement on which the suit claim has been raised by the plaintiff. What has been produced before the court, it is stated, is only a photocopy and not the original. Even assuming that the original is insufficiently stamped, then also, if it is tendered in evidence, proper orders as contemplated under the Stamp Act have to be passed by the court. The defendants have advanced a case disputing the genuineness of Ext.A1 agreement produced by CRP.51/07 4 the plaintiff with a further case that there is an arbitration clause as covered by the partnership deeds. Exts.B1 and B2 would govern the parties in the event of disputes and differences between them. They have not disputed that the plaintiff has ceased to be a partner of the firm, which is the foundation of the case set up by the plaintiff to sustain his suit claim. Even assuming that the partnership deeds constituting the firm in which the plaintiff was a partner contained an arbitration clause, its effect and validity has to be examined with reference to a specific agreement purported to have been executed by the partners by which the plaintiff ceased to be a partner of the firm. So much so, in the present case, the genuineness of Ext.A1 agreement after the production of its original by the plaintiff is vital in determining the question whether the plaintiff is entitled to the reliefs canvassed in the suit. What is noticed is that blindly accepting the contentions of the defendants, the court below has rejected the plaint presented by the plaintiff without giving him an opportunity to present his case. The order impugned is clearly unsustainable under law. Setting aside the impugned order, the court below CRP.51/07 5 is directed to re-examine the matter afresh taking note of the observations made above and in accordance with law. S.S.SATHEESACHANDRAN JUDGE prp