Anil S/O Jagannath Rana & Ors vs Rajendra S/O Radhakishan Rana & Ors

and Dist. Aurangabad and Gut No. 121 admeasuring 1H. 14R. situated at village Tisgaon Tq. and Dist. Aurangabad and the Plot No. 12 out of the land Gut No. 17/2 admeasuring 5.30R. situated at Garkheda Tq. and Dist. Aurangabad and it may also be further declared the said property belongs to the partnership firm and the plaintiffs are the owners and possessors of the said property being the valid partners of the registered firm and it may also be declared that the plaintiffs are the owners of their respective shares in the said properties.

D) It may kindly be declared that the property purchased by the defendant no.4 bearing land gut no.17/2 out of it plot no.1 admeasuring 584.36 sq.mtrs. Situated at Garkheda, Tq. and Dist. Aurangabad and the land gut no.186 admeasuring 12A. 7G. purchased in the name of defendant no.4 by defendant no.1 situated at Dahegaon Tq. Gangapur Dist. Aurangabad and the land Gut No.56 in the name of defendant no.3 to the extent of 25R and defendant no.5 to the extent of 25R. situated at Sharanapur Tq. and Dist. Aurangabad and the land gut no.213 admeasuring 35R purchased in the name of defendant no.3, under registered sale deed no.1781 dated 25.4.2007 situated at Dahegaon Tq. Gangapur Dist. Aurangabad and the land gut no.185 to the extent of 4A, 15G purchased in the name of plaintiff no.1 and defendant no.1 to the extent of 4A, 15G, situated at Dahegaon Tq. Gangapur Dist. Aurangabad and the land gut no.167/2 purchased in the name of defendant no.167/2 purchased in the name of defendant no.5 admeasuring 8A. 22G, situated at Daheaon Tq. Gangapur Dist. Aurangabad, and the land Gut No. 6 purchased in the name of defendant no.5 admeasuring 6A, situated at Rahimpur Tq. and Dist. Aurangabad and the land plot No.16 admeasuring 419 sq. mtrs. Situated at Mustafabad Tq. and Dist. Aurangabad purchased in the name of defendant no.4 is the property of partnership firm. As the said properties are purchased from the nexus and income of the partnership firm and therefore, it may kindly be declared that, the said properties belonging to the partnership firm i.e. M/s S.M. Rana (Rana Sahebram Mannulal).

F) The profit from the whole sale kerosene business run through the partnership firm M/s S.M. Rana (Rana Sahebram Mannulal) pursuant to the whole sale kerosene dealers license no.20/88 may kindly be recovered from the defendant nos.1, 2 and 3 from last three years with 18% interest per annum and it may be awarded to the plaintiffs from the defendant nos. 1, 2 and 3.

The defendants/appellants had filed an application under Section 9A of the Code of Civil Procedure, 1908[1] (hereinafter referred to as "the CPC"), as applicable to the State of Maharashtra, to dismiss the suit for want of jurisdiction since the partnership deed contained a provision for arbitration and hence the disputes were liable to be resolved in terms of the Act. In other words, application filed by defendants, in essence, was to be treated as an application under Section 8(1) of the Act. The same was opposed by the plaintiff. The trial court upheld the objection and held that it was within the jurisdiction of the court to try the dispute and, therefore, it was not required under law to refer the same to arbitration. The suit proceeded. The parties have examined all their witnesses. While so, the respondents herein approached the Chief Justice of the High Court of Judicature at Bombay in Arbitration Application No. 12/2013 under Section 11(6) of the Act seeking appointment of an arbitrator as per the terms of the partnership deed. At paragraph-4 of the application, it is stated as follows:

The impugned order is hence set aside. The appeal is allowed with costs of Rs.25,000/-.

(ANIL R. DAVE) ............................J. (KURIAN JOSEPH) New Delhi;

December 18, 2014.

[1] "9A. Whereof the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken such issue to be decided by the court as a preliminary issue.-(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.