G.L. Singh vs Surjit Kaur
1996 Latest Caselaw 177 Del

JUDGMENT

Arun Kumar, J.

(1) This is an application under Section 34 of the Arbitration Act filed by the defendant. The plaintiffs have filed a reply to this application contesting the same. The suit of the plaintiff is for partition of property No. K-72 situated in the Manufacturers' Co-operative Industrial Estate Limited, Udyog Nagar, Rohtak Road. Delhi-41. The suit plot had been allotted to a firm styled M/s. Ramco of which plaintiff No. I and his mother Mahinder Kaur (since deceased) and the defendant were partners. A copy of the partnership deed dated 1st June, 1979, has been filed as Annexure 2 to the application of the defendant under Section 34 of the Arbitration Act. The said partnership deed contains a Clause No. 15 according to which in case of any dispute or difference of opinion whatsoever amongst the partners, the same shall be settled according to the Arbitration Act as applicable from time to time. Apart from the said partnership deed , defendant applicant has also annexed a photo copy of a Dissolution-cum-Partnership Deed dated 1st August, 1985 executed between the partners as per the previous partnership deed and one Jawahar Singh, son of the present defendant. As per the said Dissolutioncum Partnership Deed, the present plaintiff No. 1 and his mother Smt. Mahinder Kaur, the erstwhile partner withdrew themselves from the partnership. All the assets of the erstwhile partnership were apparently left to the continuing partners, i.e. the present defendant and her son Jawahar Lal Singh. The dissolution-cum-partnership deed dated 1st August, 1985 also contains an arbitration clause which is in the following terms: "(a).... any dispute or difference of opinion whatsoever arises out of this Dissolution-cum-Partnership Deed shall be referred to the Sole Arbitration of Shri Virender Singh son of Shri Sohan Singh, 23/12, Ashok Nagar, New Delhi, whose decision shall be final and binding to the parties to this Deed."

(2) Relying on the aforesaid arbitration clause contained in the documents executed between the parties, the present application under Section 34 of the Arbitration Act has been filed for stay of proceedings of the present suit. The plaintiffs have filed a reply to this application. One of the points taken in the reply is that the defendant has already taken steps in the proceedings of the suit and, therefore, the present application is not maintainable. Secondly, during the course of hearing of the application, the learned Counsel for the plaintiffs mainly stressed the point that in the application of the defendant under Section 34 of the Arbitration Act the disputes between the parties have not been spelled out and, therefore, the application is liable to be dismissed on this ground alone. I may note here that the plaintiffs have also denied the Dissolution-cum-Partnership Deed.

(3) So far as the first point regarding taking steps in the proceedings is concerned, nothing has been shown to substantiate this point. On the other hand, the learned Counsel for the defendant-applicant has drawn my attention to an order dated 25th July, 1994 passed by this Court. This order shows that the defendant had been proceeded ex-parte and by this order the ex-parte proceedings against the defendant were set aside. Further, the order records that the defendant expressed her desire to move an application under Section 34 of the Arbitration Act for stay of the present suit. Soon thereafter, the present application for stay of the suit was filed. All these facts show that the averment of the plaintiffs that the defendant has taken steps in the proceedings before moving the present application is without any basis and is totally untenable.

(4) The main argument on behalf of the plaintiffs revolves around the plea that the defendant/applicant has not spelled out the disputes in the present application and, therefore, the same is liable to be dismissed. For this, the learned Counsel for the plaintiffs has relied on certain judgment of this Court which are M/s. National Small Industries Corporation Limited, New Delhi v. M/s. Punjab Tin Printing & Metal Industries Ajraunda, Faridabad (Haryana) and Others, and Dwarka Nath Kapur v. Rameshwar Nath & Others, 1966 Rlr (Delhi Section 91). On the other hand the learned Counsel for the defendant applicant relies on a latest decision of this Court Subhash Chander Kathuria v. Ashoka Alloy Steels Limited & Others reported in 1995 (3) Apex Decisions . The learned Single Judge of this Court has considered all these previous decisions in this latest decision and has expressed the view that the law cannot be said to be that in every application under Section 34, the disputes have to be spelled out in absolute terms. I am in respectful agreement with the latest decision of this Court referred to above. The facts of the case and the context in which the application under section 34 has been moved in the present case have to be appreciated in the first instance. The applicant defendant is really setting up a case, that in view of the Dissolution- cum-Partnership Deed dated 1st August, 1995, there are no disputes left between the parties. The applicant has made the said document as Annexure to the application. The learned Counsel for the plaintiffs submitted that this has not been stated in so many words in the application and, therefore, I should ignore the plea of the defendant that all disputes stand settled and, therefore, there is nothing for him to state as to what the disputes between the parties are. I am unable to subscribe to this contention on behalf of plaintiffs because the application alongwith annexures has to be seen as a whole which really sets out the case of the defendant/applicant in this behalf. Therefore, absence of a specific statement in the application itself will not deprive the application of its real substance. The very purpose of filing the Dissolution-cum-Partnership Deed by the defendant as annexure to the application is to show that the plaintiffs settled all their claims regarding the erstwhile partnership and walked out. From this, it follows that if at all there is any grievance or dispute I may say so, it is the plaintiffs who are raising it. So far as the defendant is concerned, there is no dispute left between the parties. In these circumstances, compelling the defendant to set out disputes in the application under Section 34 will be wholly unjustified. For this reason, I am of the view that it cannot be said in absolute terms without reference of a given case that every application under Section 34 of the Arbitration Act must spell out the disputes sought to be referred to arbitration and without that the application must fail. The result of this discussion is that I do not find any substance in the argument of the plaintiffs in this behalf as per facts of the present case. There is no other point raised on behalf of the plaintiffs. The result is that the application of the defendant under Section 34 of the Arbitration Act is allowed. The proceedings in the suit are ordered to be stayed. I may note at the end that the above discussion is only for purposes of decision in the present application and there is no expression of opinion on merits of the case of either party. The application is disposed of. I.A. 7306 of 1994 :

(5) Counsel for the defendant submits that this application also should be disposed of simultaneously. However, Counsel for the plaintiffs submits that he is not in a position to argue this application today and hearing of the same be postponed. In view of the request of the Counsel for the plaintiffs, list this application forbearing on 17thMay, 1996. Since the application is being adjourned at the request of the Counsel of the plaintiffs, if will not be open to him to urge that because of stay of the suit, this application cannot be heard.