ANANTHESH BHAKTA REPRESENTED  BY MOTHER USHA A.BHAKTA & ORS. versus NAYANA S. BHAKTA & ORS.
[2016] 12 S.C.R. 62, Supreme Court of India, 2016
Outcome: Dismissed (Dismissed)
Segment: Facts
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[2016] 12 S.C.R. 62 
ANANTHESH BHAKTA REPRESENTED 
BY MOTHER USHA A.BHAKTA & ORS. 
v. 
NAYANA S. BHAKTA & ORS. 
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(CivilAppealNo.10837 of2016) 
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NOVEMBER 15, 2016 
[R. K. AGRAWAL AND ASHOK BHUSHAN, JJ.) 
Arbitration and Conciliation Act, 1996: 
s.8(2) - Interpretation of - Application for reference of 
parties to arbitration not to be entertained unless accompanied by 
original arbitration agreement or a duly certified copy thereof -
When not applicable - Held: s.8(2) has to be interpreted to mean 
that the Court shall not consider any application for reference of 
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parties to arbitration, unless acco111panied by original arbitration 
agreement or duly certified copy thereof - However, filing the 
application without such original or certified copy. but bringing 
original arbitration agree111ent on record at the ti111e when the Court 
is considering the application shall not entail rejection of the 
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application uls. 8(2) - On facts, the original Deeds of Partnership 
and Retirement from Partnership, containing arbitration clause, were 
filed by respondents-defendants, three days after filing the 
application seeking reference to arbitration - It was only after filing 
of original deeds that the Court proceeded to decide the 
application - Furthe1; the deeds were also relied 011 by the appellants-
plaintiffs themselves - Thus, appellants' plea that application of 
respondents was liable to be rejected u/s;8, dismissed. 
Disputes relating to benefits arising out
of Deeds of 
Partnership qnd Retirement from Partnership - Deeds containing 
arbitration clause/agreement - Reference to arbitration -
G Permissibility - Plea of Plaintiffs that dispute in question cannot be 
referred to arbitration since one of the defendants was not a party 
to the arbitration agreement - Held: Not acceptable, since the 
defendant was impleaded by. the plaintiffs themselves - Party -
Partnership. 
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Dfaputes concerning unregistered partnership deed, if can 
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ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
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be referred to arbitration - Effect of such non-registration, 'if any -
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Held: On facts, both the Deeds of Partnership and Retirement from 
Partnership contained an arbitration clause - Thus, when the 
partners and those claiming through them agreed to get the dispute 
settled by arbitration, it is not open for the appellants to contend 
that partnership being unregistered partnership, the dispute cannot 
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be referred to arbitration - Registration Act, 1908 - Partnership. 
Words and phrases - 'entertained' - Meaning of, in context 
to s.8(2), Arbitration and Conciliation Act, 1996 - Explained. 
Dismissing the appeal, the Court 
HELD: 1.1 Section 8(2) of the Arbitration and Conciliation 
Act, 1996 has to be interpreted to mean that the Court shall not 
consider any application filed by the party under Section- 8(1) 
unless it is accompanied by original arbitration agreement or duly 
certified copy thereof. The filing of the application without such 
original o"r certified copy, but bringing original arbitration 
agreement on record at the time when the Court is considering 
the application shall not entail rejection of the application under 
Section 8(2). [Para 22] [76-E-F] 
1.2 In the present case, only after the original Retirement 
Deed and Partnership Deed were filed by the respondents-
defendants on 12th May, the Court proceeded to decide the 
respond-ents-defendants' application, seeking
reference to 
arbitration, on 9'h May. Further, the Retirement Deed and 
Partnership Deed were also relied by the plaintiffs. Hence, the 
argument that the defendants' application seeking reference to 
arbitration was not accompanied by original deeds and hence, 
liable to be rejected, cannot be accepted. The Plaintiffs admittedly 
were parties to the arbitration agreeme~t. On facts, it cannot be 
said that merely because one of the defendants i.e. defendant no. 
6 whom they had impleaded was not party to the arbitration 
agreement, the dispute between the parties which essentially 
related to the benefits arising out of Retirement Deed and 
Partnership deed cannot be referred. [Paras 21, 23, 26] [76-D-
E, G; 77-F-G] 
1.3 In the present case there was no dispute between the 
parties that both Retirement Deed and Partnership Deed 
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[2016] 12 S.C.R. 
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contained an arbitration clause. When the partners and those who 
claim through partners agreed to get the dispute ~ettled by 
arbitration, it is not open for the appella.nts to contend that 
partnership being unregistered partnership, the dispute cannot 
be referred. The appellants have not been able to show any 
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statutory provision either in 1996 Act or in any other statute from 
which it can be said that dispute concerning unregistered 
partnership deed cannot be referred to arbitration. [Paras 28, 
29) [78-F; 79-B-D) 
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Hindusthan Commercial Bank Ltd. v. Punnu Sahu 
(Dead) throttgh Legal Representatives 1971 (3) SCC 
124; Martin and Harris Ltd v. Vlth Additional District 
Judge and others. 1998 (1) SCC 732 : 1997 (6) Suppl. 
SCR 380 - relied on. 
Atul Singh & Others v. Sunil Kumar Singh & Others. 
2008 (2) SCC 602 : 2008 (1) SCR 44 - distinguished. 
Bharat Sewa Sansthan v. U.P. Electronics Corporation 
Ltd. 2007 (7) SCC 737 : 2007 (9) SCR 533 - referred 
to. 
P. Ramanatlta Aiyar's Atlvancetl Law Lexicon and 
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Bf acks Law Dictionary - referred to. 
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Case Law Reference 
2908 (1) SCR 44 
distinguished Para 15 
2007 (9) SCR 533 
referred to 
Para 16 
.1911 (3) sec 124 
relied on 
Para 19 
1997 (6) Suppl. SCR 380 
relied on 
Para 20 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10837 
of2016. 
From the Judgment and Order dated 08.07.2014 of the High Court 
G of Karnataka at Bangalore in CRP No. 219 of 2014. 
G. V.
Chandrashekar (For Ms. Anjana Chandrashekar), Advs., 
for the Appellants. 
· 
V. N. Raghupathy, Adv., for the Respondents. 
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The Judgment of the Court was delivered by
ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
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A.BHAKTA v. NAYANA S. BHAKTA 
ASHOK BHUSHAN, J. I. Leave granted. 
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2. This appeal has been filed against judgment dated 08.07.2014 
ofHigh Court ofKamataka in Civil Revision No. 219 of2014. The Civil 
Revision was filed by the appellants against the judgment and order 
dated 27'h May, 2014 of vacation District Judge, Mangalore in Original 
Suit No. 5of2014 filed by the appellants/plaintiffs. In the Suit, I.A. No. 
IV was filed by the defendants/respondents under Section 8( I) of 
Arbitration and Conciliation Act, 1996, relying on arbitration agreement 
in retirement deed dated 25 .07.2005(hereinafter referred to as retirement 
deed) as well as in the partnership deed dated 05.04.2006(hereinafter 
referred to as partnership deed). Learned District Judge has allowed 
the application filed by the defendant under Section 8( 1) of 1996 Act. 
Parties to the suit were referred to the arbitration to settle the dispute as 
per arbitration agreement. The High Court vide impugned judgment has 
affirmed the order ofTrial Court with observation that parties can press 
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for an early trial. The Revision Petition was disposed of accordingTy. 
Aggrieved against the judgment of High Court, the appellants/plaintiffs 
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have filed this appeal. 
are: 
3. The brief facts necessary to be noted for deciding this appeal 
(i) Late Ramabhakta had started a business of manufacture 
and sales of 'Beedi' under the name 'Mis Neo Subhash 
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Beedi
Works'. After his demise, his six sons, namely, late 
M. Narasimha Bhakta, late M. Subhaschandra Bhakta, late 
M. Prakashchandra Bhakta, late M. Ganesh Bhakta, late 
M. Gangadhar Bhakta and late M. Ashok Bhakta, 
constituted the partnership firm. 
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(ii) M. Narsimha Bhakta retired from the firm as per the 
release deed dated 30.06.1986 and the remaining partners 
continued with the firm. 
(iii) M.Prakashchandra Bhakta died on 20.03.1995 and as 
per his Will, his minor son Master M. Vinayaka Bhakta 
was admitted to the partnership as per partnership deed 
dated 21.03.1995. On 06.03.1997, Subhaschandra Bhakta 
died and his LRs, namely Defendant Nos. 1 to 4 became 
partners. Ashok Bhakta died on 18.09.2001. The first 
plaintiff is son of late Ashok Bhakta. 
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(iv) On 25.07.2005, retirement deed was executed in which 
Defendant Nos.l to 4 were stated to have retired from 
partnership. The partnership deed dated 05.04.2006 was· 
entered between late M. Gangadhar Bhakta, M. Vinayaka 
Bhakta, Defendant No. 5 and M. Vipin Bhakta(S/o late M. 
Ganesh Bhakta) and Master M. Anantesh B h a kt a, l " 
Plaintiff. M.Gangadhar Bhakta expired and his estate is 
represented by the Plaintiff Nos. 2 .& 3. 
4. The suit for partition was filed by M. Prakaschandra Bhakta 
and others against M. Subhaschandra Bhakta and others, being O.S. 
NO. 4of1985. The preliminary decree was passed on 31.07.1986. M. 
Subhaschandra Bhakta and others filed FOP No. 24 of 1992 for 
preparation of final decree in which the compromise petition dated 
04.04.1994 was filed and compromise decree was passed on 05.04.1994. 
As per the compromise decree, Item No. l of' A' schedule property 
was allotted to M. Subhaschandra Bliakta and Item No. 2 was allotted 
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to M. Prakashchandra Bhakta. 
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5. An agreement to sale dated 19.04.1993 was executed by M. 
Prakashchandra Bhakta in favour of partnership firm. Similar agreement 
to sell dated 19.04.1993 was also executed by M.Subhaschandra Bhakta 
in favour of firm. 
6. A Suit No. 5of2014 was filed by three Plaintiffs (appellants) 
against six Defendants who are Respondent Nos. 1 to 6 in this appeal 
praying for permanent prohibitory injunction restraining the Defendants 
or
anyone claiming through them for transferring or alienating' A' schedule 
property. Further, the permanent prohibitory injunction was sought against 
the Defendant regarding possession and enjoyment of property by Plaintiff. 
The Defendant had filed I.A.No.IV under Section 8( I) of Arbitration 
and Conciliation Act, 1996 (hereinafter referred to as Act) on 09.05.2014, 
praying to pass an order referring the parties to the arbitration for 
adjudication of the disputes raised by the Plaintiff in the Suit. The 
application was not accompanied by retirement deed and partnership 
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deed. 
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7. On 12.05.2014, the original retirement deed and the partnership 
deed were produced by the Defendant along with the list. The counter 
affidavit to the application I.A. No. IV was also filed by the Plaintiff. 
The Learned District Judge heard the I.A.No.IV as well as the objections
ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
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A.BHAKTA v. NAYANA S. BHAKTA [ASHOK BHUSHAN, J.) 
raised by the Plaintiff and by an order dated 27.05.2014, passed the 
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following order: 
· "I.A.No. IV filed under Section 8(1) of the 
Arbitration and Conciliation Act, 1996 by the defendants 
is all owed. : 
The parties to the suit are referred to the 
Arbitration to settle their dispuies and differe11ces, in 
view of the Arbitration Agreement. 
The suit of the plaintiffs stands disposed off 
accordingly. " 
8. Learned Counsel appearing .for appellants in support of this 
appeal raised following submissions: 
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(i) The application I.A.No.IV of 2014 praying for referring the 
matter to arbitration was not accompanied by the original retirement 
deed dated 25.07.2005 and partnership deed dated 05.04.2006, hence 
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the application was liable to be dismissed under Section 8(2) and Learned 
District Judge committed error in allowing the application. According to 
Se((tion 8(2) of the Act, it is mandatory to file.the original arbitration 
agreement or a duly certified copy thereof along with the application 
seeking reference to the arbitration. 
(ii) All the parties to the suit were not par.ties to the arbitration 
·agreement as claimed in retirement deed and partnership deed. Hence, 
dispute c·ould not have been refereed to the arbitrator. 
(iii) The firm being an unregistered finn, no reference to the 
arbitration can be made with regard to the dispute relating to
unregistered 
fim1. 
9. Learned counsel appearing for respondents have refuted the 
submissions and contends that Learned District Juoge after considering 
all aspects of the matter have rightly ma<je the reference to the arbitrator. 
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It is s~bmitte4 that there was clear arbitration agrei;:ment in the retirement 
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deed as well as in the partnership deed as has been noted by District 
Judge and the suit could not h~ve proceeded. All the Plaintiffs as well as 
Defendant Nos. I to 4 and Defendant No. 5 were parties to the arbitration 
agreement either personally or claiming through the person who was 
party to the agreement. The Defendant No. 6 has not inherited any right 
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f2016l 12 S.C.R. 
ill the partnership firm and was unnecessarily imp leaded by the Plaintiff. 
Mere presence of Defendant No.6 as one of the Defendants does not 
preclude the implementation of arbitration agreement. With regard to 
non-filing ofretirement deed and partnership deed along wid1 application 
I.A.No. IV of 2014, two submissions have been raised. Firstly, it is 
contended that the Plaintiff themselves has filed both retirement deed 
and partnership deed along with the 1 ist of documents and having admitted 
both retirement deed and partnership deed, non-filing along with the 
application I.A.No. IV was inconsequential. Secondly, the Defendant 
themselves immediately after three days of filing their I.A.No. IV of 
2014 had filed the original retirement deed and partnership deed on 
12.05.2014 and at the time the matter was considered by District Judge, 
original deeds were on the record. Hence, the application I.A.No. IV 
was not liable to be rejected on this ground. There is no such provision 
which prohibits the adjudication of dispute by arbitration regarding an 
unregistered partnership firm. 
10. We have considered the submissions of learned counsel for 
the parties and perused the records. 
11. From the pleadings on records and submissions made, following 
three issues arises for consideration: 
(I) Whether non-filing of either original or certified copy of 
retirement deed and partnership deed along with
application I.A.No. IV 
dated 09.05.2014 entailed dismissal of the application as per section 8(2) 
of 1996 Act. 
(2) Whether the fact that all the parties to the suit being not parties 
to the retirement deed/partnership deed, the Court was not entitled to 
make the reference relying on arbitration agreement. 
(3) Whether dispute pertaining to unregistered partnership deed . 
cannot be referred to an arbitration despite there being arbitration 
agreement in the deed ofretirement/pa11nership deed. 
ISSUE N0.(1) 
12. Two facts which emerged from record in this respect need to 
be noted. Firstly, the plaintiffs in their plaint ofO.S.No. 5 of2014 have 
referred to and admitted the retirement deed dated 25.07.2005 and 
partnership deed dated 05.04.2006 in para 5 of the plaint. The plaintiffs 
themselves have filed the photocopies of deed of retirement dated
ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
A.BHAKTA v. NAYANA S. BHAKTA [ASHOK BHUSHAN, J.] 
25.07.2005 as the document no. 6 in the list and photocopies of partnership 
deed dated 05.04 .. 2006 as document no. 7 as have been noted in para 
23 of the District Judge judgment. 
Further, although initially the application filed by Defendant IA.No. 
IV dated 09.05.2014 was not accompanied by copy of retirement deed 
and partnership deed. The Defendant on 12.05.2014 filed the original 
retirement deed and partnership deed along with the list. It is useful to 
note the findings recorded by District Judge in the above context in 
paragraph 39 which is to the following effect: 
"39. 
The materials 011 record clearly goes to show that 
IA.No. IV was filed by the defendants on 09. 05.2014. 
It is true that the application was not accompanied by 
the Retirement Deed and the Partnership Deed either 
the originals or the certified copies. On 12. 05.2014 the 
original Retirement Deed and the Partnership Deed were 
produced by the defendants along with the list. " . 
13. Section 8 which falls for consideration in the present case 
provides as follows: 
·· 8. Power to refer parties to arbitration where there is · 
an arbitration agreement-
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( l) A judicial authority before which an action is 
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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) The application referred to in sub-section (1) shall 
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not be entertained unless it is accompanied by the 
original arbitration agreement or a duly certified copy 
thereof 
(3) Notwithstanding that an application has been made 
under sub-section (1) and that the issue is pending 
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before the judicial authority. an arbitration may be 
commenced or continued and an arbitral award made. " 
14. The appellants submit that sub-section (2) of Section (8) 
provides that "the application referred to in sub-section (I) shall not be 
entertained unless it is accompanied by the original arbitration a'grecment 
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A or a duly certified copy thereof." They submit that admittedly with the 
application I.A.No. IV filed on 09 .OS .2014, original or certified copy of 
the Retirement Deed and Partnership Deed was not filed. 
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IS. Learned Counsel to the appellants also placed reliance on a 
judgment of this court reported in 2008 (2) SCC 602, Atul Singh & 
Othes Vs. Sunil Kumar Singh & Others. In the above case, defendant 
had moved a petition on 28.02.200S praying for referring the dispute to 
arbitration. The Trial Court had dismissed the petition on the ground that 
the predecessor in interest of the plaintiff was not party to the Partnership 
Deed executed on 17 .02.1992. Hence the main relief being declaration 
of the deed to be void which could have been granted only by the Civil 
Court, the dispute could not be referred. Defendant filed Civil Revision 
which was allowed by the High Court. One of the submissions made 
before this court ~as that as per sub-section (2) of. Section (8), the 
application could not have entertained unless it was accompanied by 
original arbitration agreement or duly certified copy thereof. This court 
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held that there is no whisper in the petition that the original agreement or 
a duly certified copy is b'eing filed. There was non compliance of Section 
8(2). Hence the reference could not have been made. Following was 
stated by this court in paragraph 19: 
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" 19. There is no whisper in the petition
dated 
28.02.2005 that the original arbitration agreement or 
a duly certified copy thereof is being filed along with 
the application. Therefore, there was a clear non-
compliance with sub-section (2) of Section 8 of the 1996 
Act which is a mandatory provision and the dispute 
could not have been referred to arbitration. Learned 
couns,el for the respondent has submitted that a copy of 
partnership deed was on ihe record of the case. 
However, in order to satisfy the requirement of sub-
section (2) of Section 8 of the Act, Defendant 3 should 
have filed the original arbitration agreement or a duly 
certified copy thereof along with the. petition filed by 
him on 28.02.2005, which he did not do. Therefore, no 
order for referring the dispute to arbitration could have 
been passed in the suit. " 
It is relevant to note that in Atul Sillgll 's case (Supra), the 
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submission of respondent was notieed that the copy of the Partnership
ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
A.BHAKTA v. NAYANA S. BHAKTA [ASHOK BHUSHAN, J.] 
Deed was on the record of the case, but the Court has not proceeded to 
examine as to when such copies are already on record what is the effect. 
16. In this context, the reference is made to judgment of this Court 
in 2007 (7) SCC 737, Bharat Sewa Sansthan Vs. U.P.E/ectronics 
Corporation Ltd. 
In °the above case, two judge bench of this Cou11 has held that 
photocopies of lease agreement could be taken on record under Section 
8 for ascertaining the existence of arbitration clause. Following was 
stated in paragraph 24: 
"24. The respondent Corporation placed on record of 
the trial court photocopies of the agreements along with 
an application under Section 8(1) of the Arbitration 
Act. The High Court, in our vim; has rightly held that 
the photocopies of the lease agreements could be taken 
on record under Section 8 of the Arbitration Act for 
ascertaining the existence of arbitration clause. Tlrns, 
the dispute raised by the appellant Sansthan against 
the respondent Corporation in terms of the arbitratiOn 
clause contained in the lease agreement is arbitral." 
In the case of Atu/ Singh (Supra), which was also a judgment of 
two Judge Bench, earlier judgment in Bharat Sewa Swist/um was not 
cited. However, for purposes of this case, we need not enter into the 
issue as to whether there is a compliance of section 8(2) if photocopies 
of the arbitration agreement is already on
the record and not disputed 
by the parties. 
17. There is one another aspect of the matter which is sufficient 
to uphold the order of the District Judge. Section 8(2) uses the phrase 
"shall not be entertained". Thus, what is prohibited is the entertaimnent 
of the application unless it is accompanied by the original arbitration 
agreement or a duly certified copy thereof. 
18. The word 'entertained' has specific meaning in P. Ranumatlw 
Aiyar's Advanced Law Lexicon word 'entertained' has been defined 
as: 
" I. To bear in mind or conside1; esp, to give judicial 
consideration to (the Court then entertained motions 
for continuance). 
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2. To amuse or please. 
3. To receive( a person) as a guest or provide hospitality 
to (a person). 
The expression 'entertain' means to 'admit a thing 
for consideration' and when a suit or proceeding is not 
thrown out in limine but the Court receives it for 
consideration and disposal according to law it must be 
regarded as entertaining the suit or proceeding, no 
matter whatever the ultimate decision might be. " 
The Blacks Law Diction(lry also defines this word 'ente1iain • as 
follows: 
"To bear in mind or consider;esp., to give judicial 
consideration to <the court then entertained motions 
for continuance>" 
19. In 1971 (3) SCC 124, Hitulustlu111 Commerci"I Bank Ltd. 
Vs. Pu1111u Sa/tu (De"d) tlzrouglt Leg"/ Representatives, the word 
'entertained' came for consideration as occurring in Order 21, Rule 90, 
Proviso of Civil procedure Court. Para 2 of the Judgment notices the 
amended Proviso which was to the following effect: 
"2. The amended proviso with which we are concerned 
in this appeal reads thus: 
'Provided that no application to set aside a sale shall 
be entertained-
(a) upon any ground which could have been taken by 
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the applicant on or before the date on which the sale 
proclamation was drawn up; and 
(b) Unless the applicant deposits such amount not 
exceeding twelve and half percent of the sum realised 
by the sale or furnishes such security as the Cou.rt may, 
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in its discretion, fix
except when the Court for reasons 
to be recorded dispense with the requirements of this 
clause: 
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Provided further that no sale shall be set aside 
011 the ground of irregularity or fraud unless upon the
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facts proved the Court is satisfied that the applicant 
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has sustained substantial injury by reason of :Such 
irr(ff{Ularity or fraud. " 
The contention of the appellant was that word 'entertain' refers 
to initiation of the proceedings and not to the stage when the Court takes 
up the application for consideration. The High Court had rejected the 
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said contention. The above view of the High Court was approved by this 
court in paragraph 4 of the judgment. Following was stated: 
"4. 
Before the High Court it was contended on behalf 
of the appellant and that contention was repeated in 
this court, that Clause (b) of the proviso did not govern 
the present proceedings as the application in question 
had been filed several months before that clause was 
added to the proviso. It is the contention of the appellant 
that the expression 'entertain 'found in the proviso refers 
to the initiation of the proceedings and not to the sage 
when the Court takes up the application for 
consideration. This contention was rejected b}l the High 
Court relying on the dl'cision of that Court in Kwulan 
Lal Vs. Jagan Nath S/iarnw, AIR 1962 All 547. The 
sameview had been taken by the said High Court in 
Dlioom Chand Jain V. Clianumlal Gupta, AIR 1962 All 
543 and Haji Rahim Bux and Sons V. Firm Samiu/la/1 
and Sons, AIR 1963 All 320 and again in Malu1vir Sing II 
V. Gauri Sltankar, AIR 1964
All 289. These deeisions 
have interpreted the expression 'entertain' as meaning 
'adjudicate. upon' or 'proceed to consider on merits'. 
-This view of the High Court has been accepted as 
correct by this Court in Lakslm1iratm1 EngilteerinK 
Works Ltd. V. Asst. Comm., Sales tax, Kanpur, AIR 1968 
SC 488. We are bound by that decision and as such we 
are unable to accept the contention of the appellant 
that Clause (b) of the proviso did not apply to the present 
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proceedings. " 
20. Another relevant judgment is 1998 (1) SCC 732, Martin 
and Harris Ltd. Vs. VIt/1 Additional District Judge and otllers. In 
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the above case Section 21 (1) proviso of U.P. Urban Builqings 
(Regulation of Letting, Rent and Eviction) Act, 1972 (13 of 1972) 
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word 'entertained' came for consideration. The proviso to Section 
21 (1) was to the following effect: 
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" 8. Provided that where the building was in the 
oq:upation of a tenant since before its purchase by the 
landlord, such. purchase being made after the 
commencement of the Act, no application shall be 
entertained on the grounds, mentioned in clause(a) 
unless a period of three· years has elapsed since the 
date of such purchase and the landlord has given a 
notice in that behalf to the tenant not less than six months 
before such application, and such notice may be given 
even before the expiration of the aforesaid period of 
three years. " 
In the above case, the application under Section 21 (1) was filed 
by the landlord before expiry of period of three years from the date of 
purchase. It was held by this Court that word 'entertained' as employed 
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proceedings. In Para 9 and I 0, following was laid down: 
"9. 
Even that apart there is an. internal indication in 
the first proviso to Section 21 (1) that the legislature has 
made a clear distinction between 'entertaining' of an 
application for possession under Section 21 (l)(a) of 
the Act and 'filing' of such application. So far as the 
filing of such application is concerned it is clearly 
indicated by the legislature that such application cannot 
be filed before expiry of
six months from the date on 
which notice is given by the landlord to the tenant 
seeking eviction under Section 21 (l)(a) of the Act. The 
words, "the landlord has given a notice in that behalf 
to the tenant not less than six months before such 
application", would naturally mean that before filing 
of such application or moving of such application 
before the prescribed authority notice must have 
preceded by at least six months. Similar terminology is 
not employed by the legislature in the very same proviso 
so far as three years' period for entertaining such 
application on the grounds mentioned in clause (a) of 
Section 21(1) a stage must be reached when the court
ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
A.BHAKTA v. NAYANA S. BHAKTA [ASHOK BHUSHAN, J.] 
applied its· judicial mind and takes up the case for 
decision on merits concerning the grounds for 
possession mentioned in clause (a) of Section 21(1) of 
the Act. Consequently on the very scheme of this Act it 
cannot be said that the word 'entertain' as employed by 
the legislature in the first proviso to Section 21 (1) of 
the Act would at least mean taking cognizance of such 
an application by the prescribed authority by issuing 
summons for appearance to the tenant-defendant. It 
must be held that on the contrary the term 'entertain' 
would only show that by the time the application for 
possession on the grounds mentioned in clause (a) of 
Section 21(1) is taken up by the prescribed authority 
for consideration on merits, at/east minimum three years' 
period should have elapsed since the date of purchase 
of the premises by the landlord 
10. Leaned Senior Counsel, Shri Rao, for the appellant 
then invited our attention to two decisions of this Court 
in the case of Lakshmiratan Engineering Works Ltd. V. 
Asstt. Commr. (Judicial) I, Sales Tax and Hindus than 
Commercial bank Ltd V. Punnu Sahu, In Laksh111irata11 
Engineering this Court was concerned with the meaning 
of the word 'enterluin' mentioned in the proviso to 
Section 9 of the U.P. Sales Tax Act, 1948. 
Hidayatullah,J., speaking for the Court observed in tlie 
light of the statutory scheme of Section 9 of the said
Act that the direction to the Court in the proviso.JQ,;. 
Section 9 was to ·the effect that the Court shall not 
proceed to admit to consideration an appeal which is 
not accompanied by satisfactory proof of the payment 
of the admitted tax. Jn the case of Hindusthan 
Commercial Bank the term 'entertain' as found in the 
proviso to Order XXJ Rule 90 Code of Civil 
Procedure(CPC) fell for consideration of the Court. 
Hegde,J., speaking for a Bench of two learned Judges 
of this Court in this connection observed that the term 
'entertain' in the said provision means 'to adjudicate 
upon' or 'to proceed to consider on merits' and did not 
mean 'initiation of proceeding'. The aforesaid 
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decisions, in our view, clearly show that when the 
question of entertaining an application for giving relief 
to a party arises and when such application is based 
on any grounds on which such application has to be 
considered, the provision regarding 'entertaining such 
applicatio11' on any-of these grounds would necessarily 
mea11 the co11sideratio11 of the application on the merits 
of the grounds on which it is base. In the present case, 
therefore, it must be held that when the legislature has 
provided that no application under Section 21 (l)(a) of 
the Act shall be entertained by the prescribed authority 
on grounds mentioned in clause (a) of Section 21 (1) of 
the Act before expiry of three years from date of 
purchase of property by the landlord it must necessarily 
mean consideration by the prescribed authority of the 
grounds mentioned in clause (a) of Section 21 (1) of the 
Act on merits." · 
21. In the present case as noted above, the original Retirement 
Deed and Partnership Deed were filed by the defendants on 12th May 
and it is only after filing of original deeds that Court proceeded to decide 
the application I.A.No. IV. 
22. Section 8(2) has to be interpreted to mean that the court shall 
not consider any application filed by the party under Section 8( I) unless 
it is accompanied by original arbitration agreement or duly certified copy 
thereof. The filing of the application without
such original or certified 
copy, but bringing original arbitration agreement on record at the time 
when the Court is considering the application shall not entail rejection of 
the application under Section 8(2). 
23. In the present case it is relevant to note the Retirement Deed -
and Partnership Deed have also been relied by the plaintiffs. Hence, the 
argument of plaintiffs that defendants' application I.A.No. IV was not 
accompanied by original deeds, hence., liable to be rejected, cannot be 
accepted. We are thus of the view that the appellants submission that 
the application of defendants under Section 8 was liable to be rejected, 
cannot be accepted. 
ISSUE NO. 2 
24: The relevant facts and pleadings of the parties have been
ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
A.BHAKTA v. NAYANA S. BHAKTA (ASHOK BHUSHAN, J.] 
marshaled by the trial court. Trial Court has returned the findings that 
the plaintiff no. I represented by his mother and next friend was party to 
the Retirement Deed. The mother of plaintiff namely Smt. Usha A. 
Bhakta has signed the retirement deed for self and on behalf of her 
minor children, the plaintiff No. I. Plaintiff No. 2 and 3 claiming their 
rights through one of the partners Shri Gangadhar Bhakta, their father, 
who was party to the retirement deed. In paragraph 23 of the judgment, 
Learned District Judge had returned the following_ findings: 
·· ... therefore, the plaintiff no. 1 represented by his mother 
and next friend Smt. Usha A. Bhakta is a party to the 
Retirement Deed and plaintiffs 2 and 3 are claiming 
their rights through one of the partner late Shri 
Gangadhar Bhakta, who was also a party to the 
Retirement Deed. The Defendants 1 to 5 are also the 
parties to this Retirement Deed. Therefore, except 
defendant No. 6 all others are either personally or 
through the persons from whom they are claiming the 
right are parties to the Deed of Retirement Deed dated 
25.07.2005 ... " 
Thus it was only defendant no. 6 who was not party to the 
retirement deed or partnership deed. Both 5th and 6th defendants are 
issues of late M. Pra]q).shchandra Bhakta. · 
25. Learned Counsel for the respondents have submitted that it 
was case of the plaintiffs themselves that
by virtue of Will executed by 
M.Prakashchandra Bhakta it was only defendant no. 5 who became 
entitled to benefits of partnership and defendant no. 6 was not given any 
share. 
26. The plaintiffs admittedly are parties to the arbitration agreement 
as noted above. It does not lie in their mouth to contend that since one of 
the defendants whom they have imp leaded was not party to the arbitration 
agreement, no reference can be made to the arbitrator. In the facts of 
the present case, it cannot be said that merely because one of the 
defendants i.e. defendant no. 6 was not party to the arbitration agreement, 
the dispute between the parties which essentially relates to the benefits 
arising out ofRetirement Deed and Partnership deed cannot be referred. 
27. Learned District Judge has noted that defendant no.6 has not 
inherited any share either in Partnership deed or in the schedule property 
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and hence there is no question of bifurcation of either cause of action or 
parties. Relevant findings in this context have been returned by District 
Judge in paragraph 40 to the following effect: 
"40 .. .Jt is only defendant No. 6 was not the party to 
either the Retirement Deed or the Partnership Deed 
where there is an Arbitration Clause to refer all the 
disputes and differences to the Arbitration. Even 
according to the plaintiffs defendant No. 6 is not a 
Partner nor she is a party to any of the documents and 
further as per the Will executed by her father late Shri 
Prakash Chandra Baktha, she has not inherited any 
right or share either in the Partnership Deed or in the 
Schedule property. Moreover, the Plaint schedule 
property according to the plaintiffs is the p~operty of 
the Partnership Firm Mis. 'Neo Subhash Beedi Works'. 
Therefore, there is no question of bifurcation of either 
cause of action or parties if the same is to be referred 
to the Arbitration as per the Arbitration Clause formed 
in the Retirement Deed dated: 25.07.2005 and the 
Partnership Deed dated 05.04.2006 ... " 
We fully endorse the above view taken by Learned DistrictJudge. 
E 
ISSUE NO. 3 
28. The submission by the appellants is that partnership being an 
unregistered partnership, no reference can be made to the arbitration. In 
the present case there is no dispute between the parties that both 
Retirement deed and Partnership deed
contain an arbitration clause. In 
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Retirement deed which had been signed by retiring partners, continuing 
partners and concurring partners, following was stated in clause 8: 
" .. .Jn case of any dispute or difference arising between 
the parties, regarding the interpretation of the contents 
of this Deed of Retirement or any other matter or 
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transactions touching the said retirement, it shall be 
referred to an arbitration under the provisions of the 
Arbitration & Conciliation Act, 1996 ... " 
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Further, in partnership deed which was 05.04.2006, clause 26 
contains an arbitration clause which is to the following effect:
ANANTHESH BHAKTA REPRESENTED BY MOTHER USHA 
A.BHAKTA v. NAYANA S. BHAKTA [ASHOK BHUSHAN, J.] 
" 26. ALL DISPUTES arising between the partners or 
their legal representatives about the interpretation of 
this Deed or their rights and liabilities there under or 
in relation to any other matters whatsoever touching 
the partnership affairs shall be decided by an 
Arbitration as provided by the Arbitration & 
Conciliation Act, 1996." 
· 
When the partners and those who claim through partners agreed 
to get the dispute settled by arbitration, it is not open for the appellants to 
· contend that partnership being ui1registered partnership, the dispute carinot 
be referred. 
29. The appellants have not been able to show any statutory 
provision either in 1996 Act or in any other statute from which it can be 
said that dispute concerning unregistered partnership deed cannot be 
referred to arbitration. We thus do not find any substance in the third 
submission of the appellant. 
30. In the result, we do not find any merit in this appeal which is 
accordingly dismissed. 
Divya Pandey 
Appeal dismissed. 
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