CRP/3872/2014 of S Lakshmi Vs M/s Reliance Builders on 31 December 2014

1. To appoint Advocate Commissioner to forthwith inspectthe office of the 1[st] respondent situated at 101,102,Venkatarama Towers, M.No.3-6-69, Opposite Old SkylineTheatre Basheerbagh, Hyderabad-29 as well as theresidences/offices of the respondents No.2 to 14 andseize all the books of accounts , vouchers, cash books,cheque books, income-tax returned, assessment orders,audited balance sheets and all other material evidencepertaining to the 1[st] respondent firm both paper andelectronic form, including the hard diskettes either installedor separately kept in the systems and also portable harddisks found during the execution of warrant in all suchpremises along with the all the books of account andsubmit the same in a sealed cover before the Court to besent to the Arbitrator adjudicating the disputes between theparties.

2. To direct the respondent Nos. 1 to 14 to cooperate withthe Advocate-Commissioner and deliver all otherdocuments and books mentioned in clause (1) above tothe Advocate-Commissioner.

3. To grant ex-parte ad-interim injunction restraining therespondent Nos.1 to 13 from anyway dealing with theaffairs of the 1[st] respondent firm either by way of alienatingthe assets including petition ‘A’ schedule properties orwithdrawing the funds or incurring any liabilities or obligations on behalf of or in the name of 1[st] respondentfirm with or without any prefixes or suffixes or registrationnumbers.

4. To grant ad-interim injunction restraining the respondentNos. 1 to 13 from entering into any transaction or deed ordocument of conveyance in respect of item No.1 of thepetition ‘A’ schedule in favour of the respondent No.15 orany other person.Nos. 1 to 13 from entering into any transaction or deed ordocument of conveyance in respect of item No.1 of thepetition ‘A’ schedule in favour of the respondent No.15 orany other person.

5. To direct the respondent Nos. 19 to 26 not to permit anyfurther transaction hereafter, particularly any debit orwithdrawal of funds or by way of overdraft or other kindsof advances, except those permitted by this Court.further transaction hereafter, particularly any debit orwithdrawal of funds or by way of overdraft or other kindsof advances, except those permitted by this Court.

6. To direct the respondent Nos.16 to 18 not to enter intoany further transactions or documents with the respondentNos. 1 to 13 in respect of the ventures under developmentwith the 1[st] respondent except with the prior permission ofthis Court.any further transactions or documents with the respondentNos. 1 to 13 in respect of the ventures under developmentwith the 1[st] respondent except with the prior permission ofthis Court.

6A To grant ad-interim injunction restraining the respondent Nos. 27 and 28 from dealing with or entering into any transactions by way of alienation or otherwise creating any interest in respect of item Nos. 1 to 3 of the petition ‘A’ schedule in favour of any persons respondent Nos. 27 and 28 from dealing with or entering into any transactions by way of alienation or otherwise creating any interest in respect of item Nos. 1 to 3 of the petition ‘A’ schedule in favour of any persons

7. And to pass such other order or orders as this Court may deem fit and proper in the circumstances of the case. may deem fit and proper in the circumstances of the case.

3. It is averred in the O.P. that 1[st] respondent firm wasoriginally constituted as a partnership firm under a partnershipdeed, dated 19-04-1988 of which respondents 2 to 6 along with therespondents 11 to 13 were partners. It was under the partnershipdeed , dated 27-11-1991 under which Smt.Ashrafunnisa Begum,Sultan Naseeruddin and Sultan Rasheemuddin were inducted aspartners. Again it was reconstituted under the partnership deed,dated 02-07-1992 under which the petitioner along with respondents 7 to9 were inducted as partners and respondent No.10 who was minorthen admitted to the benefits of partnership of the 1[st] respondentfirm. Under the same partnership deed, respondents 11 to 13along with Smt.Ashrafunnisa Begum, Sultan Naseeruddin and Sultan Rasheemuddin retired from the 1[st] respondent firm. Respondents 11 to 13 along with respondents 2 to 6 are nowclaiming that the firm, which was reconstituted and stooddissolved long back by partnership dated 27-11-1991 is still subsisting and is distinct from the reconstituted firm under thepartnership deed, dated 02-07-1992. 2[nd] respondent wasmanaging the 1[st] respondent firm from its inception and continuedto be the Managing Partner of the reconstituted firm and he wasgiven all the powers under the partnership deeds executed fromtime to time to constitute and reconstitute of the 1[st] respondentfirm and finally the firm reconstituted under the partnership deed,dated 02-07-1992 alone has been carrying on the business in thename and style of ‘M/s Reliance Builders’ from 1988 till date andall the transactions including the deeds of sale, purchase anddevelopment have been executed by or on behalf of and in thename of M/s Reliance Builders by the 2[nd] respondent.

Thereafter, it came to the light that the 2[nd] respondentcreated bogus sale deeds in favour of his son and niece and otherpartners and their family members. This attitude of the 2[nd]respondent has given rise to certain differences in the middle of2012. Thereupon, the petitioner prevailed over her husband andfather-in-law to negotiate with the 2[nd] respondent and settle all thedifferences and disputes. The entire business of all its ventureshas been carried on in the name and style of M/s RelianceBuilders only. There is no other firm with the same name or withanother prefixes or suffixes. The letter heads, registered deeds,agreements by and in favour of 1[st] respondent firm are made onlyin the name of M/s Reliance Builders and reconstituted firm wasdissolved by notice of one of the partners. It cannot carry on newbusiness as it was duly wound up after settlement of accounts,discharge of liabilities and distribution of all its assets inaccordance with Section 48 of the Partnership Act. Hence, theO.P.

4. Respondents 1, 2, 4 to 6 and 11 and 12 herein(petitioners in I.A.) filed the above I.A. under Order VII Rule 11 r/wSection 151 CPC to reject the O.P. as it does not contain cause ofaction and that the petitioner herein has no locus standi to file theO.P. as admittedly she was not a party to the firm originallyconstituted on 19-04-1988.

5. It was averred in the affidavit filed in support of I.A.that the firm which was constituted on 19-04-1988 with Registration No.659/89 is totally different and distinct with that ofthe partnership firm which was constituted on 27-11-1991 and reconstituted on 02-07-1992 with RegistrationNo.4680/92 and the differences between the Reliance Buildersbearing Regn.No.659/89 and Reliance Builders bearingRegn.No.4680/92 have been incorporated in the tabular form. Thefirm bearing Regn.No.659/89 dated 03-03-1989 is with thefollowing partners

viz.,1) M.Srinivasa Rao, 2) M.Kaleswara Rao, 3) V.Ramakrishna,4) Mrs.M.Padmaja Rao, 5) Mrs.V.Venkata Vajramma, 6)Mrs.V.Mani, 7) Mrs.V.Venkata Anitha and 8) Mrs.M.Rajeswari. The said firm was flouted under the name and style of M/sReliance Builders and there is no change in the constitution of thepartners from the inception till this day and the income tax returnsare being filed in the firm Registration Number and its PANNo.AAAFR9780Q. The partnership deed, dated 27-11-1991consisting of 11 partners for the purpose of construction ofcommercial/residential complex upon the land resumed bydemolishing the building bearing No.3-6-69 situated atBasheerbagh, Hyderabad under the name and style of M/sReliance Builders. The said partnership firm was reconstituted on02-07-1992 with its original partners and 5 new partners wereinducted. The said partnership deed was registered on 02-07-1992with Regn.No.4680/92. The petitioner herein is no way concernedor associated with the 1[st] respondent firm and that she is only apartner in M/s Reliance Builders bearing Regn. No.4680/92 and thesaid firm did not undertake or execute any other work till todayand that the registration number, pan number and other activitiesof the two firms are distinct and different and in no wayinterconnected and taking advantage of nomenclature of the twofirms being the same, the petitioner herein proclaiming openlythat they will cause disruption of the activities of the petitioner’sfirm and that the M/s Reliance Builders bearing Regn.No.659/89which was constituted on 19-04-1988 never dissolved and it issubsisting till date and pursuing the business activitiesunhampered all these years and that there is no arbitration clausein the partnership deed bearing Regn.No.659/89 and this fact hasbeen clearly noted in I.A.No.1221/12 in O.S.No.1948 of 2012 onthe file of the V Senior Civil Judge, City Civil Court, Hyderabad. In that suit, the petitioner filed I.A.No.1248 of 2012 in O.S.No.1948of 2012 praying the Court to refer the parties to the arbitration in terms of Cl.11 of partnership deed, dated 02-07-1992. The saidpetition was dismissed and the same was confirmed by this Courtin CRP No.815 of 2013. But, however, when the matter wascarried to the Hon’ble Supreme Court in S.L.P. (C) No.6208 of2013, the matter was remanded to this Court, but the petitionerherein withdrew the CRP No.815 of 22013 after remand from theSupreme Court. Therefore, the order of the trial Court inI.A.No.1248 of 2012 in O.S.No.1948 of 2012 was not disturbed andit is still in operation. Hence, the I.A.

6. The petitioner herein (1[st] respondent in I.A.) filedcounter affidavit in the said I.A. stating that the proceedings underSection 9 of the Act are summary and interlocutory in nature andOrder VII Rule 11 has no application. The O.P. discloses causeof action, which are traversed in great detail. There is no disputethat the deed of reconstitution, dated

02-07-1992 including the petitioner herein as a partner containsarbitration clause. The tax returns and registrations are part of thefraudulent scheme of the petitioners and the truth or otherwise ofthese allegations can be gone into only by the arbitrator underSection 16 of the Act and beyond the scope of the presentapplication and the documents filed by the petitioners are createdfor the purpose of denying the share of this respondent, which areex-facie bogus and spurious. The allegations in Pars 6 to 11 inthe I.A. are false and the petitioner herein reiterated the contentsof O.P. and denied each and every allegation in the I.A. Hence, thepetitioner herein prayed to dismiss the I.A.

7. The learned trial Judge after considering the materialon record, came to the conclusion that the petitioner herein failedto fulfill the conditions as laid down under Section 9 of the Act toinitiate proceedings before the Court and that she is not entitled tofile O.P. and accordingly allowed I.A. rejecting O.P.No.1949 of2013. Hence, this revision.

8. Mr.M.V.Durga Prasad, learned counsel appearing forthe petitioner contended that I.A. filed by some of the respondentsunder Order VII Rule 11 CPC is not maintainable, that theproceedings under Section 9 of the Act are in the nature ofsummary proceedings, that without notices being served on someof the respondents, the trial Judge ought not to have passed the impugned order, that I.A. filed by the respondents does notdisclose any grounds incorporated in Order VII Rule 11 CPC, thatwhether there is any reconstitution of firm or not and whether thepetitioner is a partner or not are questions of fact, which have tobe resolved by an arbitrator and the same has no bearing underSection 9 of the Act, that under Order VII Rule 11 CPC, the Courthas to see only the plaint and documents filed along with the plaintto ascertain whether it discloses cause of action or not, but not thedocuments filed by the respondents to know whether theallegations made out a cause of action or not, that it is not indispute that the petitioner herein is a partner of the 1[st] respondentfirm by virtue of the reconstitution deed, dated 02-07-1992, that thedocuments filed by the respondents in I.A. cannot be looked into atthe stage of Order VII Rule 11 CPC and the contentions raised bythe respondents with reference to the pleadings and documentsare yet to be proved and hence, they cannot be looked into, thatthere is no denial of firm’s managing partner, business office,staff, stationery and other advertisement material and it is one andthe same in respect of both firms, that when the pleadings are notcomplete, the impugned order is passed and thereby causingmiscarriage of justice and that this is not the stage to consider thecase of the petitioner and hence, he prays to set aside theimpugned order.

9. On the other hand, Mr.S.Ravi, learned senior counselappearing for the respondent No.1 contended that PAN numbers oftwo firms is entirely different and income tax returns are beingsubmitted separately for the firm bearing Regn.No.659/89 and alsofirm bearing Regn.no.4680/92, that there is no impediment underlaw that in the same name two firms can be registered and theycan be operated from one place, that in the firm bearingRegn.No.659/89, the petitioner herein is not admittedly a partnerand that firm has not been dissolved in terms of Section 63 of theIndian Partnership Act, 1932 (for short ‘the Partnership Act’), thatthe firm bearing Regn.No.4680/92 is constituted for specificpurpose and for developing only one property, , that the O.P. underSection 9 of the Act is not maintainable in view of the fact thatthere was no arbitration clause in the said firm bearingRegn.No.659/89 and filing Original Petition is nothing but abuse ofprocess of law and that considering the facts of the case, the trialJudge rightly allowed the I.A. and the same needs no interference by this Court.

10. Mr.S.Niranjan Reddy, learned counsel appearing forthe respondents 2 to 8 and 13 contended that while dealing withO.P. under Section 9 of the Act, the Court has to decide whether itis valid arbitration agreement in terms of Section 7 of the Act, thatunder Section 9 of the Act, the party invoking the jurisdictionshould be a party to the agreement and the said agreement shouldcontain arbitration clause, that unless these two conditions aresatisfied, such a person has no right to initiate the proceedings,that the documents, and material papers have been brought to thenotice of the Court seeking to reject the O.P., that the petitionerfailed to demonstrate about the constitution of firm, dated 19-04-1988, which was reconstituted on 27-11-1991 and againreconstituted on 02-07-1992 and therefore, there is no cause ofaction, that the findings in I.A.1248 of 2012 in O.S.No.1948 of 2012on the file of the V Senior Civil Judge, Hyderabad have becomefinal and the said order is in operation and the petitioner cannot re-agitate in some other form and as the petitioner failed todemonstrate reconstitution of firm, she is not entitled to claim anyreliefs.

11. Mr.K.V.R.Chowdary, learned counsel appearing forrespondents 9 to 12 and Mr.T.Bala Mohan Reddy, learned counselappearing for respondent No.15 contended that the petitioner is nota party within the meaning of Section 2 (b) of the Act, that therewas no pleading with regard to constitution of the firm originally inthe year 1988 or that firm was reconstituted in the year 1992, thatas CRP 815 of 2013 was withdrawn, the order in I.A.No.1248 of2012 in O.S.No.1948 of 2012 on the file of V Senior Civil Judge,Hyderabad, has become final, that though leave is granted by thisCourt, it does not mean the said order has not been set aside inclear terms, that filing of application is nothing but abuse ofprocess of law and hence, he prays to dismiss the revision.

12. Learned counsel for the parties relied on severaldecisions, which will be referred to at appropriate place.

13. For entertaining O.P. under Section 9 of the Act, tworequirements are to be satisfied viz., 1) the party invoking thejurisdiction should be a party to the agreement and 2) such agreement must contain arbitration clause. Unless the above twoconditions are fulfilled, no person has a right to initiateproceedings under Section 9 of the Act. Section 9 of the Act readsthus:

“9. Interim measures by court:- A party may, before or duringarbitral proceedings or at any time after the making of thearbitral award, but before it is enforced in accordance withSection 36, apply to a court:-

(i) for the appointment of a guardian for a minor or aperson of unsound mind for the purpose of arbitralproceedings; orperson of unsound mind for the purpose of arbitralproceedings; or

(ii) for an interim measure of protection in respect of anyof the following matters, namely:-of the following matters, namely:-

(a) the preservation, interim custody or sale of anygoods which are the subject matter of thearbitration agreement;goods which are the subject matter of thearbitration agreement; (b)securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of anyproperty or thing which is the subject matter of thedispute in arbitration, or as to which any questionmay arise therein and authorizing for any of theaforesaid purposes any person to enter upon anyland or building in the possession of any party, orauthorizing any samples to be taken or anyobservation to be made or experiment to be tried,which may be necessary or expedient for thepurpose of obtaining full information or evidence;property or thing which is the subject matter of thedispute in arbitration, or as to which any questionmay arise therein and authorizing for any of theaforesaid purposes any person to enter upon anyland or building in the possession of any party, orauthorizing any samples to be taken or anyobservation to be made or experiment to be tried,which may be necessary or expedient for thepurpose of obtaining full information or evidence; (d)interim injunction or the appointment of a receiver; (e)such other interim measure of protection as mayappear to the court to be just and convenient,appear to the court to be just and convenient, and the Court shall have the same power for making orders as it hasfor the purpose of, and in relation to, any proceedings before it.”

14. The word ‘party’ is defined under Section 2 (h) of theAct, which meansa party to an arbitration agreement. Section 2(b) of the Act defines ‘arbitration agreement’ which means anagreement referred to in Section 7. Section 7 of the Act readsthus:

“7.Arbitration agreement:- (1) In this Part, ‘arbitrationagreement’ means an agreement by the parties to submit toarbitration all or certain disputes which have arisen or whichmay arise between them in respect of a defined legalrelationship, whether contractual or not.

(2) An arbitration agreement may be in the form of anarbitration clause in a contract or in the form of a separateagreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in- (a)a document signed by the parties; (b)an exchange of letters, telex, telegrams or other meansof telecommunication which provide a record of theagreement; orof telecommunication which provide a record of theagreement; or

(c) an exchange of statements of claim and defence inwhich the existence of the agreement is alleged by oneparty and not denied bywhich the existence of the agreement is alleged by oneparty and not denied by

(5) The reference in a contract to a document containing anarbitration clause constitutes an arbitration agreement if the contractis in writing and the reference is such as to make that arbitrationclause part of the contract.”

A conjoint reading of the above two definitions and thedefinition of arbitration agreement means a person invoking thejurisdiction under Section 9 of the Act must be one of the parties tothe agreement and such an agreement must be in writing singedby the parties. Such a contract/agreement to a document mustcontain arbitration clause. For the purpose of invoking jurisdictionunder Section 8 or 9 or 11 of the Act, the above conditions have tobe fulfilled. If any one of the conditions have not been fulfilled, itcan safely be said that the Court in which an application underSection 9 of the Act is filed, is without jurisdiction. In the absenceof these two conditions, the Court cannot usurp the jurisdictionunder Section 9 of the Act and it would be a futile or meaninglessexercise to be taken up by the arbitrator.

15. The entire edifice of the petitioner’s case is that 1[st]respondent firm was constituted by partnership deed, dated 19-04-1988 for which, the respondents 2 to 6 along with respondents 11to 13 were partners and it was reconstituted under partnershipdeed, dated 27-11-1991 under which three more partners wereinducted and again it was reconstituted under partnership deed,dated 02-07-1992 under which the petitioner along withrespondents 7 to 10 were inducted as partners. By virtue of thepartnership deed, dated 02-07-1992, respondents 11 to 13, Smt.Ashrafunnisa Begum,Sultan Naseeruddin and Sultan Rasheemuddin retired from 1[st]respondent firm.

16. On the other hand, it is the specific case of therespondents that respondents, 1,2, 4 to 6 and 11 and 12 that thepartnership deed, dated 03-03-1999 with Regn. No.659/89 (for convenience, it shall be referred to first firm) which was registeredin pursuance of agreement, dated 19-04-1988 is a distinct and separate from that of the firmconstituted on 27-11-2991, which was registered on 02-07-1992 with Regn.No.4680/92 (for convenience, it shall bereferred to as second firm) and the second firm was constitutedfor specific purpose of construction of commercial/residentialbuilding upon land resumed by demolishing the building bearingNo.3-6-69 situated at Basheerbagh, Hyderabad and that PANnumber for the first firm is AAAFR9780Q whereas the PANnumber for the second firm is AAAFR9779F. It is also the specificcase of the respondents that first firm has not been dissolved norreconstituted and that there is no recital in the deed of second firmto the effect that it was reconstituted in pursuance of dissolution ofthe first firm or inducted new partners into second firm.

17. It is not in dispute before this Court that there is noarbitration clause in the agreement of the first firm whereas Cl.23of deed of partnership dated 27-11-1991 contains arbitrationclause. Similarly the said agreement, which was registered withRegistrar of firms and came into effect from 02-07-1992 containsarbitration clause. After dissolution of the first firm, second firmwas constituted or second firm was reconstituted in pursuance offirst firm, then certainly the Court will have jurisdiction to entertainapplication under Section 9 of the Act and pass appropriateorders.

18. It is necessary to refer to the order, dated 05-02-2013in I.A.No.1248 of 2012 in O.S.No.1948 of 2012, which was filedunder Section 8 of the Act to stay the suit by referring the partiesto arbitration in terms of clause 11 of partnership deed, dated 02-07-1992. A categorical finding was recorded to the effect that inthe partnership deed, dated 19-04-1988, the petitioner is not aparty and it does not contain any arbitration clause and that thepetitioner came up with the present petition in respect ofpartnership deed, dated 09-07-1992 which is totally different andthe respondents therein are not concerned with the questioning ofpartnership deed, dated 09-07-19192 and accordingly, dismissedthe application. Challenging the same, the petitioner herein filedCRP 815 of 2013 before this Court. A division bench of this Courtvide order, dated 15-04-2013 held thus:

“It is the specific case of the 1[st] respondent that the relief ofinjunction prayed for by it, is in relation to their activity andbusiness covered by Ex.R2. Admittedly, the petitioner is nota party to that. In case the arrangement under Ex.R2 waseither dissolved or merged with the one, which was broughtinto existence through Ex.R5 and thereafter. Ex.R7, thenagain, the request of the petitioner could have been accededto. However, a perusal of Ex.R2 on the one hand and Exs.R5and R7 on the other, prima facie, discloses that these two areseparate and independent arrangements. The mere fact thatsome of the partners are common to both the arrangementsdoes not, by itself, indicate the merger or the unity.

The trial Court in our opinion has arrived at just and correctconclusion that the dispute in the suit is not the subject matterof the arrangement under Ex.R7 and thereby, the arbitrationclause does not govern the situation. At any rate, the questionas to whether the subject matter of the suit is covered by thepartnership deed, Ex.R7, can certainly be identified as anissue to be decided in the suit.”

19. While observing, this Court directed the trial Court toframe an issue as to whether the partnership brought intoexistence through Ex.R5 and reconstituted through Ex.R7 is incontinuation of one constituted under Ex.R2 or whether these twoarrangements are independent of each other. Challenging thesame, the petitioner herein filed Civil Appeal No.6208 of 2013 inSpecial Leave petition (Civil) No.21920 of 2013. The Hon’bleSupreme Court, vide order, dated 26-07-2013 held thus:

“To appreciate the rivalised submissions assiduouslypropounded at the Bar, we have carefully scrutinized theorders passed by the learned trial Judge and that of the HighCourt. The trial Court as is evincible expressed the view afterreferring to the numerous authorities that the suit did not relateto the partnership deed, dated 02-07-1992 but pertains to thedeed dated 19-4-1988 which does not contain any arbitrationclause. A contention was urged before the High Court relatingto continuity of the arrangement and the applicability of thearbitration clause incorporated in the partnership deed, dated 2-7-1992. It is perceptible from the order passed by the HighCourt that it has referred to the documents but really notaddressed to the thrust of the dispute by referring to theaverments made in the civil revision and the proponementsmade by the counsel on behalf of the revisionist before it. Infact, we are inclined to think there was no justification to directthe trial Judge to frame an issue to find out whether the suit iscovered by the partnership deed. To return a finding asregards the attractability of Section 8 of the 1996 Act, it was necessary on the part of the High Court to scrutinize theclauses and other assertions to arrive at a definite conclusionso that there could have been apposite adjudication. We mayhasten to state that Mr.P.P.Rao, learned senior counsel urgedthis Court to go through the entire document to establish thepoint that there is no arbitration clause that would govern the lisin question. We are disposed to think that the said exerciseshould have been studiedly undertaken by the High Court andthereafter in case the controversy had traveled to this Courtthat would have been appropriately dealt with. We clearlyperceive that the High Court has not really dealt with the coreissue in a considered manner.

In view of our aforesaid premised reasons, we set aside theorder passed by the High Court and remit the matter forreconsideration, regard being had to the observations madehereinafter and decide the same in accordance with the aswithin a period of six weeks. Be it noted, we have notexpressed any opinion on the merits of the matter.”

20. In pursuance of the remand order, the CRP 815 of 2013 came up for hearing before this Court. This Court, videorder, dated 04-10-2013 held thus:

“The revision was dismissed by this Court on merits on 15-04-2013. The petitioner filed Civil Appeal No.6208 of 2013before the Hon’ble Supreme Court. The Civil Appeal wasallowed by the Hon’ble Supreme Court and their lordshipsdirected this Court to hear the matter afresh and to decide theissue here itself.

After remand, the revision was listed for hearing on 02-09-2013. At the request of the learned counsel for thepetitioner, the matter was adjourned to today. It was madeamply clear that since the Hon’ble Supreme Court stipulatedtime for disposal of the revision, no further adjournment wouldbe granted.

Today, learned counsel for the petitioner sought to filedocuments running into about 1000 pages. We made it clear tohim that the revision has to be decided on the basis of thematerial that was available before the trial Court and it wouldnot be proper for us to decide the legality or otherwise of theorder passed in the I.A. on the basis of the additional material ofsuch a large volume. With this, learned counsel for thepetitioner sought permission of this Court to withdraw the civilrevision petition without prejudice to the right of his client to filea fresh application duly enclosing the additional material, whichis now available with him.

Permission is accorded and the civil revision petition isdismissed as withdrawn, leaving it open to the petitioner to file fresh application duly enclosing the material. In case, suchapplication is filed, the trial Court shall decide the same on itsown merits, after hearing both the parties.

The miscellaneous petition filed in this revision shall also standdisposed of. There shall be no order as to costs.”

21. From the above order, it is clear that liberty was givento the petitioner to file fresh application duly enclosing the materialand if such application is filed, the trial Court shall decide thesame on its own merits, after hearing both parties. From the aboveorder, it is clear that the order of the trial Court, dated 05-02-2013was not specifically set aside. Therefore, the findings recorded inI.A.No.1248 of 2012 in O.S.No.1948 of 2012 have become final. From the order of this Court, dated 04-10-2013, leave is granted tofile fresh application under Section 8 of the Act duly enclosing allrelevant documents. Admittedly, petitioner herein has not filefresh application under Section 8 of the Act in terms of leavegranted by this Court. The prayer sought for in I.A.No.1248 of2012 which is filed under Section 8 of the Act r/w Section 1151CPC reads as follows “ For the reasons stated in theaccompanying affidavit, the petitioner prays that this Hon’ble Courtmay be pleased to forthwith stay the suit by referring the parties toarbitration in terms of clause (11) of the partnership deed, dated02-07-1992 and pass such other order or orders as this Hon’bleCourt may deem fit and proper in the circumstances of the case”. As the petitioner has not filed fresh application, the findings in theorder, dated 05-02-2013 attained finality. But, the learned counselfor the petitioner vehemently contended that since leave isgranted, it can be inferred that the order has impliedly set aside. Withdrawing of suits is governed by Order XXIII of CPC. Withdrawal are two types. 1) absolute withdrawal i.e., withdrawalby the plaintiff without the leave of the Court and 2) qualifiedwithdrawal i.e., withdrawal with the leave of the Court. Primaryobject of Rule 1 of Order XXIII CPC is to allow the plaintiff toexercise his right to proceed with the litigation in his own way andalso to ensure fair trial on merits. Question is when the partywants to withdraw the suit even with the leave of the Court, can itbe said that the order passed is impliedly set aside.

22. On this aspect, learned counsel for the petitionerrelied on a decision reported in SHEONONDAN PASWAN V STATE

OF BIHAR[[1]],wherein it was held thus (para 12)

“There was one contention of a preliminary nature advanced byMr. Nariman on behalf of Dr. Jagannath Mishra and thatcontention was that on a proper reading of the order on thereview petition, made by A.N. Sen, J it was clear that theReview bench did not exercise the power of review and setaside the order made by the Original bench. The argument wasthat the order made by the Original bench stood unquashedand unreserved and it was therefore not competent to theConstitution bench to rehear the appeal on merits as if theorder of the Original bench did not exist. It was also urged byMr. Nariman on behalf of Dr. Jagannath Mishra that the ordermade by the Review bench was not legal and valid since it wasa non-speaking order which did not contain any reasons whythe order of the Original bench should be reviewed. Thiscontention was of course not strongly pressed by Mr. Nariman'but in any event we do not think that it has any substance. It isundoubtedly true that the order of the Review bench did not inso many terms set aside the order of the Original bench andused a rather unhappy expression, namely, "I. ...admit thereview petition". But it is clear that when the Review benchused the expression "I...... admit the review petition" it plainlyunequivocally meant that it was allowing the review petition andsetting aside the order of the Original bench, otherwise it isdifficult to understand how it could possibly "direct the re-hearing of the appeal". The appeal could be re-heard only if thereview petition was allowed and the order of the Original benchwas set aside and therefore obviously when the Review benchdirected re-hearing of the appeal, it must by necessaryimplication be held to have allowed the review petition and setaside the order of the Original bench. We cannot allow the truemeaning and effect of the order of the Review bench to beobfuscated by a slight ineptness of the language used by theReview bench. We must look at the substance of the orderrather than its apparent form. We must therefore proceed onthe basis that the order of the Original bench was set aside andre-hearing of the appeal directed by the Review bench.”

The above decision has no application to the present factsof the case because in the factual back ground when a reviewpetition was admitted, it is understood rehearing of the appeal. Ifthe contention of the learned counsel for the petitioner is to beaccepted that when leave is granted, the order under challengewould be set aside, every petitioner in Civil Revision Petitionwithdraws the revision seeking leave of the Court and therebythere would not be any adjudication in the revision by the HighCourt. If this contention is to be accepted, it is nothing butencouraging the party to withdraw revision after leave of the Court.

Therefore, unless the order of withdrawal contains a specificobservation that the order under challenge was set aside, impliedinference of setting aside the order under challenge under revisioncannot be drawn. Even assuming for a moment that leave hasbeen granted, the leave relates to only to file a fresh applicationalong with all the documents under Section 8 of the Act to stay thesuit by referring the parties to the arbitration in terms of clause 11of the partnership deed, dated 02-07-1992 but not otherwise.

23. In pursuance of the leave granted by this Court, thepetitioner has not taken any steps to file the application underSection 8 of the Act along with necessary documents. Therefore,the findings of the learned trial Judge in I.A.No.1248 of 2012 inO.S.No.1948 of 2012 have become final. The petitioner cannot bepermitted to re-agitate the same in another form i.e., filingapplication under Section 9 of the Act.

24. Learned counsel for the petitioner vehementlycontended that the provisions of Order VII Rule 11 CPC has noapplication as the proceedings under Section 9 of the Act weresummary in nature and the petition filed by respondents does notdisclose any grounds to reject the same at the threshold. For thatpurpose, he relied on a decision reported in ADHUNIK STEELS LTD

V ORISSA MANGANESE AND MINERALS (P) LTD.[[2]], wherein it washeld thus (para 21):

“It is true that the intention behind Section 9 of the Actis the issuance of an order for preservation of the subjectmatter of an arbitration agreement. According to learnedcounsel for Adhunik Steels, the subject matter of thearbitration agreement in the case on hand, is the mining andlifting of ore by it from the mines leased to O.M.M. PrivateLimited for a period of 10 years and its attempted abrupttermination by O.M.M. Private Limited and the dispute beforethe arbitrator would be the effect of the agreement and theright of O.M.M. Private Limited to terminate it prematurely inthe circumstances of the case. So viewed, it was open to thecourt to pass an order by way of an interim measure ofprotection that the existing arrangement under the contractshould be continued pending the resolution of the dispute bythe arbitrator. May be, there is some force in this submissionmade on behalf of the Adhunik Steels. But, at the same time,whether an interim measure permitting Adhunik Steels tocarry on the mining operations, an extraordinary measure initself in the face of the attempted termination of the contract byO.M.M. Private Limited or the termination of the contract by O.M.M. Private Limited, could be granted or not, would againlead the court to a consideration of the classical rules for thegrant of such an interim measure. Whether an interimmandatory injunction could be granted directing thecontinuance of the working of the contract, had to beconsidered in the light of the well-settled principles in thatbehalf. Similarly, whether the attempted termination could berestrained leaving the consequences thereof vague wouldalso be a question that might have to be considered in thecontext of well settled principles for the grant of an injunction.Therefore, on the whole, we feel that it would not be correct tosay that the power under Section 9 of the Act is totallyindependent of the well known principles governing the grantof an interim injunction that generally govern the courts in thisconnection. So viewed, we have necessarily to see whetherthe High Court was justified in refusing the interim injunctionon the facts and in the circumstances of the case.”

25. He further relied on a decision reported in NISSHOIWAI CORPN V VEEJAY IMPLEX[[3]], wherein it was held thus (para10):

“NOWHERE in this Part any Civil Court is conferred withjurisdiction expressly to decide the question of factualexistence or validity and legality of the arbitration agreement.This Section is coupled with non-obstante clause. So it is ofmandatory nature. By this Section the Civil Court particularlythis Court is stripped off jurisdictionconferred upon it underClause 12 of the Letters Patent. When Clause 12 is notinvokable so leave thereunder granted by this Court is also notsustainable. On this score also this application is bound tosucceed. As such leave granted, Clause 12 of the LettersPatent is revoked. All interim orders, if any, stand vacated.”

26. He further relied on a decision reported in SPA

AGENCIES (INDIA) PRIVATE LIMITED V HARISH RAWTANI[[4]],wherein it was held thus (para 8):

“Section 17(1) of A and C Act is couched in broad languageand confers power on arbitral tribunal to pass interlocutoryorders as may be considered necessary. In our consideredopinion, having regard to the phraseology in Section 17(1), anarbitrator can pass all orders as may be necessary. Theseorders may include an order - for injunction, to furnish security,to appoint commissioner to take evidence (in addition toSection 27), to appoint experts etc. But any such interim ordershall be directed only to parties to arbitral proceedings and notto third party, and any interim order by the arbitrator cannot gobeyond the reference of arbitration agreement. Be it also notedthat a petition under Section 9 is not a suit before a Civil Court,but a remedy provided to party to an arbitration agreement to seek interim order in relation to subject matter of the arbitrationpending adjudication.”

27. He further relied on a Judgment in W.P.No.34689 of2009 in case of M/S SOVEREIGN DEVELOPERS ANDINFRASTRUCTURES LIMITED V PARAMOUNT VIJETHA HOLDING, wherein it was held thus (para 5):

“IN my opinion, a proceeding for an interim measure underSection 9 of the Arbitration Act is almost like an interlocutoryapplication in a suit and hence such a proceeding cannot beconstrued as a suit within the meaning of Section 10 of theCode of Civil Procedure. Therefore, Section 10 of the Code ofCivil Procedure is not applicable to proceedings under Section9 of the Arbitration Act. Accordingly, I find no legal infirmity inthe impugned order to warrant interference under theextraordinary jurisdiction of this Court under Articles 226 & 227of the Constitution of India”

From the above decisions, it is clear that the applicationunder Section 9 of the Act has to be dealt with by relying upon theprinciples governing the grant of interim injunction. It is also clearthat proceedings under Section 9 of the Act are summary innature. It is also clear that petition under Section 9 of the Act isnot a suit before a civil Court and it is almost like an interlocutoryapplication in a suit. Application under Section 9 of the Act istotally independent provision.

28. He further relied on a decision reported in KASTURI

AND SONS LTD V K.C. PALANI SKWAMY[[5]], wherein it was held thus (para 89):

“The shares being goods, under the sale of goods Act as wellas of Companies Act are covered under the provisions ofSection 9 of the Arbitration & Conciliation Act and this Courtcan issue injunction against the person in possession of thegoods which are subject matter of arbitration proceedings,even if they were not the parties.”

This decision has no application because, the petitioneradmittedly is not a party to the first firm.

29. The grant of interim injunction is a discretionaryremedy and in exercise of judicial discretion in granting or refusingto grant, the Court will take into consideration the following asguidelines as held by this Court in a decision reported inN.V.CHOWDARY V HINDUSTAN STEEL WORKS CONSTRUCTION

LTD.,[[6]]

1. Whether the person seeking temporary injunction has madeout a prima facie case- This is sine quo non.

2. Whether the balance of convenience is in his favour, that is,whether it could cause greater inconvenience to him if theinjunction is not granted than the inconvenience which theother side would be put to if the injunction is granted. As tothat, the governing principle is whether the party seekinginjunction could be adequately compensated by awardingdamages and the defendant would be in a financial position topay them.

3. Whether the person seeking temporary injunction wouldsuffer irreparable injury. It is, however, not necessary that allthe three conditions must obtain. With the first condition assine quo non at least two conditions should be satisfied by thepetitioner conjunctively and a mere proof of one of the threeconditions does not entitle a person to obtain temporaryinjunction.”

From the above decision, it is clear that the first condition ofprima facie case is sine quo non. Unless the first condition issatisfied, the question of consideration of other two conditions orany one of them may not arise.

30. It is contended by the learned counsel for thepetitioner that the trial Court placed reliance in the judgment ofSupreme Court in Aravind Constructions Co. (P) Ltd (10 supra).,for a proposition which was not laid down and that theobservations in that decision do not amount a ration decidendi interms of Article 141 of the Constitution of India. Learned counselfor the petitioner relied on a decision reported in DAVINDER SINGH

[7], wherein it

AND OTHERS V STATE OF PUNJAB AND OTHERS

was held thus (para 18):

“A judgment, as is well known is the authority for theproposition which it decides and not what can logically bededuced from. This Court in the case of Union of India v.Major Bahadur Singh (2006) 1 SCC 368, has observed:

"The courts should not place reliance on decisions withoutdiscussing as to how the factual situation fits in with the factsituation of the decision on which reliance is placed.Observations of the courts are neither to be read as Euclid'stheorems nor as provisions of the statute and that too takenout of their context. These observations must be read in thecontext in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpretwords, phrases and provisions of a statute, it may becomenecessary for judges to embark into lengthy discussions butthe discussion is meant to explain and not to define. Judgesinterpret statutes, they do not interpret judgments. Theyinterpret words of statutes; their words are not to beinterpreted as statutes."

The court has proceeded to add:

"Circumstantial flexibility, one additional or different fact maymake a world of difference between conclusions in two cases.Disposal of cases by blindly placing reliance on a decision isnot proper."

31. He further relied on a decision reported inBHUWALKA STEEL INDUSTRIES LIMITED V BOMBAYH IRON ANDSTELL LABOUR BOARD AND ANOTHER[[8]], wherein it was heldthus (paras 67 and 68):

“On the other hand, Shri Singhvi, Learned SeniorCounsel for the respondents urged that the rule of stare decisiswas not and could not be viewed as an absolute rule. Reliancewas also placed on the decision in Sarva Shramik Sanghatana(KV), Mumbai Vs. State of Maharashtra and Ors. [2008 (1)SCC 494]. So also Smt. Indira Jaising, Learned Senior Counselfor the respondents repelled this argument relying on thedecisions in Maharashtra State Road Transport CorporationVs. State of Maharashtra and Ors. (cited supra) and DanialLatifi and Anr. Vs. Union of India [2001 (7) SCC 740]. Ourattention was also invited to treatise by Justice G.P. Singh,(11th Edition). It was urged by Shri Singhvi that in theaforementioned judgments of the Bombay High Court,excepting the judgment in Century Textiles and Industries Ltd.Vs. State of Maharashtra (cited supra), this question has notfallen for consideration at all. The Full Bench and moreparticularly, the Learned Single Judge (Hon'ble Deshmukh, J.)has rejected this argument that this question was not squarelybefore Hon'ble Rege, J. in his two judgments in C. Jairam Pvt.Ltd. Vs. State of Maharashtra (cited supra) and S.B. More andOrs. Vs. State of Maharashtra and Ors. (cited supra) nor was itbefore the Division Benches in Judgments in LallubhaiKevaldas and Anr. Vs. The State of Maharashtra and Ors.(cited supra), Irkar Sahu's and Anr. Vs. Bombay Port Trust(cited supra), Century Textiles and Industries Ltd. Vs. State ofMaharashtra (cited supra) including this Court judgment inMaharashtra Rajya Mathadi Transport and Central KamgarUnion Vs. State of Maharashtra and Ors. (cited supra). TheLearned Single Judge noted the argument that it wasexpressed in Lallubhai Kevaldas and Anr. Vs. The State ofMaharashtra and Ors. (cited supra) that the Act did not apply tothe manual workers in the scheduled employment, who were

Ratio decidendi

protected by the other labour legislations and the said judgmentwas followed thereafter in the case of Century Textiles andIndustries Ltd. Vs. State of Maharashtra (cited supra) and,therefore, on principle of stare decisis, the settled position oflaw should not be disturbed. The Learned Judge has also notedthe decision in State of Gujarat Vs. Mirzapur Moti KureshiKassab Jamat and Ors. (cited supra). The Learned SingleJudge then, relying on the judgment of this Court in M/s. GoodYear India Ltd. Vs. State of Haryana [AIR 1990 SC 781],commented that the precedent is an authority only for what itactually decides and not for what may remotely or logicallyfollow from it. The Learned Single Judge then went on to holdthat what is binding is the ratio decidendi of the judgment. TheLearned Judge noted that this question did not fall forconsideration either in the two judgments by Hon'ble Rege, J.in C. Jairam Pvt. Ltd. Vs. State of Maharashtra (cited supra)and S.B. More and Ors. Vs. State of Maharashtra and Ors.(cited supra) or even in the judgment in Lallubhai Kevaldas andAnr. Vs. The State of Maharashtra and Ors. (cited supra). Inour view, the Learned Judge was absolutely correct in soholding. Close examination of judgments by Hon'ble Rege, J.,as also judgment in Lallubhai Kevaldas and Anr. Vs. The Stateof Maharashtra and Ors. (cited supra) will show that thequestion about the correct interpretation and scope of theSection 2(11) of the Mathadi Act did not fall for consideration inthose cases.

THIS Court, in Sarva Shramik Sanghatana (KV),Mumbai Vs. State of Maharashtra and Ors. (cited supra) hasspecifically quoted from the decision in Quinn Vs. Leathem[1901 Appeal Cases 495] as follows:- "Before discussing Allen Vs. Flood [1898 Appeal Cases1] and what was decided therein, there are two observations ofa general character, which I wish to make; and one is to repeatwhat I have very often said before - that every judgment mustbe read as applicable to the particular facts proved or assumedto be proved, since the generality of the expressions whichmay be found there are not intended to be expositions of thewhole law, but are governed and qualified by the particular factsof the case in which such expressions are to be found. Theother is that a case is only an authority for what it actuallydecides. I entirely deny that it can be quoted for a propositionthat may seem to follow logically from it. Such a mode ofreasoning assumes that the law is necessarily a logical code,whereas every lawyer must acknowledge that the law is notalways logical at all." (Emphasis supplied)

The Court therein again referred to the decision inAmbica Quarry Works Vs. State of Gujarat [1987 (1) SCC 213]and upheld the observations therein to the effect that:- "18. The ratio of any decision must be understood in thebackground of the facts of that case. It has been said long timeago that a case is only an authority for what it actually decidesand not what logically follows from it."

The Court further relied upon the decisions inBhavnagar University Vs. Palitana Sugar Mill (P) Ltd. [2003 (2)SCC 111], Bharat Petroleum Corpn. Ltd. Vs. N.R. Vairamani[2004 (8) SCC 579] and finally, the decision in British RailwaysBoard Vs. Herrington [All ER 761] and has quoted the followingobservations therefrom:- "There is always peril in treating the words of a speechor a judgment as though they were words in a legislativeenactment, and it is to be remembered that judicial utterancesare made in the setting of the facts of a particular case. 11.Circumstantial flexibility, one additional or different fact maymake a world of difference between conclusions in two cases.Disposal of cases by blindly placing reliance on a decision isnot proper."

Now, when we examine all the Bombay High Court'sjudgments on the basis of this ratio, it is clear that excepting thedecision in Century Textiles and Industries Ltd. Vs. State ofMaharashtra (cited supra), such position could not be obtained.There can be no dispute about the importance attached by thisCourt in the above mentioned cases, as relied upon by theappellants, which favour the consistency of law.”

There is no dispute about the proposition of law laiddown by the Supreme Court because ratio of decisionhas to be understood with reference to the factualbackground. In order to have a correct perception of theratio decidendi of a case, it is necessary to have a closelook at the factual back ground of judgment itself. It is noteverything said by a judge which has a force of ratiodecidendi. In other words every observation found in ajudgment is not a ratio. The decision of Supreme Court isan authority for the proposition which it decides. It isbased upon facts.

32. Learned counsel appearing for the respondentscontended that in the absence of any procedure laid downunder special statute, the general principle of procedurecould be applicable. For that he relied on a decision reported in SBP

& CO. V PATEL ENGINEERING LTD AND

ANOTHER[[9]], wherein it was held thus (para 19):

“IT is also not possible to accept the argument that there is anexclusive conferment of jurisdiction on the arbitral tribunal, todecide on the existence or validity of the arbitrationagreement. Section 8 of the Act contemplates a judicialauthority before which an action is brought in a matter whichis the subject of an arbitration agreement on the termsspecified therein, to refer the dispute to arbitration. A judicialauthority as such is not defined in the Act. IT would certainlyinclude the court as defined in Section 2(e) of the Act andwould also, in our opinion, include other courts and may eveninclude a special tribunal like the Consumer Forum (See FairAir Engineers (P) Ltd. and another v. N.K.Modi ). When thedefendant to an action before a judicial authority raises theplea that there is an arbitration agreement and the subjectmatter of the claim is covered by the agreement and theplaintiff or the person who has approached the judicialauthority for relief disputes the same, the judicial authority, inthe absence of any restriction in the Act, has necessarily todecide whether, in fact, there is in existence a valid arbitrationagreement and whether the dispute that is sought to be raisedbefore it, is covered by the arbitration clause. IT is difficult tocontemplate that the judicial authority has also to actmechanically or has merely to see the original arbitrationagreement produced before it, and mechanically refer theparties to an arbitration. Similarly, Section 9 enables a court,obviously, as defined in the Act, when approached by a partybefore the commencement of an arbitral proceeding, to grantinterim relief as contemplated by the section. When a partyseeks an interim relief asserting that there was a dispute liableto be arbitrated upon in terms of the Act, and the oppositeparty disputes the existence of an arbitration agreement asdefined in the Act or raises a plea that the dispute involvedwas not covered by the arbitration clause, or that the courtwhich was approached had no jurisdiction to pass any orderin terms of Section 9 of the Act, that court has necessarily todecide whether it has jurisdiction, whether there is anarbitration agreement which is valid in law and whether thedispute sought to be raised is covered by that agreement.There is no indication in the Act that the powers of the courtare curtailed on these aspects. On the other hand, Section 9insists that once approached in that behalf, "the court shallhave the same power for making orders as it has for thepurpose of and in relation to any proceeding before it". Surely,when a matter is entrusted to a Civil Court in the ordinaryhierarchy of courts without anything more, the procedure ofthat court would govern the adjudication [See R.M.A.R.A.Adaikappa Chettiar and anr. v. R.Chandrasekhara Thevar]

33. He further relied on a decision reported in ARVIND CONSTRUCTIONS CO. (P) LTD. V KALINGA MINING CORPORATION

[10], wherein it was held thus (para 15):

AND OTHERS

“The argument that the power under Section 9 of the Act isindependent of the Specific Relief Act or that the restrictionsplaced by the Specific Relief Act cannot control the exercise ofpower under Section 9 of the Act cannot prima facie beaccepted. The reliance placed on Firm Ashok Traders and Anr.Vs. Gurumukh Das Saluja and Ors. [(2004) 3 S.C.C. 155] inthat behalf does not also help much, since this Court in thatcase did not answer that question finally but prima facie felt thatthe objection based on Section 69 (3) of the Partnership Actmay not stand in the way of a party to an arbitration agreementmoving the court under Section 9 of the Act. The power underSection 9 is conferred on the District Court. No specialprocedure is prescribed by the Act in that behalf. It is alsoclarified that the Court entertaining an application under Section9 of the Act shall have the same power for making orders as ithas for the purpose and in relation to any proceedings before it.Prima facie, it appears that the general rules that governed thecourt while considering the grant of an interim injunction at thethreshold are attracted even while dealing with an applicationunder Section 9 of the Act. There is also the principle that whena power is conferred under a special statute and it is conferredon an ordinary court of the land, without laying down anyspecial condition for exercise of that power, the general rules ofprocedure of that court would apply. The Act does not primafacie purport to keep out the provisions of the Specific ReliefAct from consideration. No doubt, a view that exercise ofpower under Section 9 of the Act is not controlled by theSpecific Relief Act has been taken by the Madhya PradeshHigh Court. The power under Section 9 of the Act is notcontrolled by Order XVIII Rule 5 of the Code of Civil Procedureis a view taken by the High Court of Bombay. But, how farthese decisions are correct, requires to be considered in anappropriate case. Suffice it to say that on the basis of thesubmissions made in this case, we are not inclined to answerthat question finally. But, we may indicate that we are primafacie inclined to the view that exercise of power under Section9 of the Act must be based on well recognized principlesgoverning the grant of interim injunctions and other orders ofinterim protection or the appointment of a receiver.”

According to the learned counsel for the petitioner, the abovedecisions have no application because the correctness of the viewexpressed by some High Courts in that regard is left open to bedecided in appropriate case. Therefore, it is not a ratio within themeaning of Article 141 of the Constitution of India.

34. Mr.KVR Chowdary, learned counsel for some ofrespondents relied on a decision reported in M/S GROUPECHIMIQUE TUNISIEN SA V M/S SOUTHERN PETROCHEMICALSINDUSTRIES CORPN LTD.[[11]], wherein it was held thus (para 6):

“Whether there is an arbitration agreement or not, has to bedecided with reference to the contract documents and not withreference to any contention raised before a court of law afterthe dispute has arisen. Reference to pleadings before theJordanian Courts would have been relevant if the plea was thatthe arbitration agreement between the parties is contained inthe exchange of statement of claim and defence in which theexistence of the agreement is alleged by one party and notdenied by the other (as contemplated under Section 7(4)(c) ofthe Act). Be that as it may. Section 2(b) of the Act defines'arbitration agreement' as meaning an agreement referred to inSection 7 (extracted below) :

"7. Arbitration agreement. - (1) In this Part, "arbitrationagreement" means an agreement by the parties to submit toarbitration all or certain disputes which have arisen or whichmay arise between them in respect of a defined legalrelationship, whether contractual or not. (2) An arbitrationagreement may be in the form of an arbitration clause in acontract or in the form of a separate agreement. (3) Anarbitration agreement shall be in writing. (4) An arbitrationagreement is in writing if it is contained in (a) a documentsigned by the parties; (b) an exchange of letters, telex,telegrams or other means of telecommunication which providea record of the agreement; or (c) an exchange of statements ofclaim and defence in which the existence of the agreement isalleged by one party and not denied by the other. (5) Thereference in a contract to a document containing an arbitrationclause constitutes an arbitration agreement if the contract is inwriting and the reference is such as to make that arbitrationclause part of the contract."

35. Bearing the above principles in mind, it has to be seenwhether the petitioner has prima facie case for invoking thejurisdiction of the trial Court?

36. The entire case of the petitioner rests upon the firstpartnership deed, which contain arbitration clause and the secondpartnership firm is reconstitution of first partnership firm. Thoughit is a question of fact, but at the same time, prima facie it has tobe proved by the petitioner basing on the material on record thatthe second partnership firm is reconstituted in terms of firstpartnership firm. If the first firm is reconstituted as second firm, then there is no difficulty in accepting the case of the petitionerbecause there is no dispute that the deed of second firm containsan arbitration clause. There is enough material filed by therespondents to show that first firm is separate and distinct withthat of the second firm. The first firm bearing Regn.No.659/89,second firm bearing Regn.No.4680/92 and PAN numbers of thesetwo firms are different and the material also would go to show thatincome tax returns are being filed separately for first and secondfirms. There is no recital in the deed of second firm that it wasreconstituted in pursuance of first firm or first firm was dissolved. Section 91 of the Indian Evidence Act, 1872 reads thus:

“91.Evidence of terms of contracts, grants and otherdispositions of property reduced to form of document:- When the terms of a contract, or of a grant, or of any otherdisposition of property, have been reduced to the fofmr of adocument and in all cases in which any matter is required bylaw to be reduced to the form of a document, no evidenceshall be given in proof of the terms of such contract, grant orother disposition of property, or of such matter, except thedocument itself, or secondary evidence of its contents incases in which secondary evidence is admissible under theprovisions hereinbefore contained.”

It is a cardinal rule of evidence, not one of technicality, but ofsubstance, which it is dangerous to depart from that where writtendocuments exist, they shall be produced as being a best evidenceof their own contents. Therefore, Section 91 of the Evidence Actrestricts any evidence to contradict the terms of written contract.In the absence of any recital in the second deed of partnership thatit was reconstituted, the contention of the petitioner that it isreconstituted firm is wholly untenable and it is without any basis. The deed of second partnership contains all the terms of contract. Therefore, the petitioner is debarred from raising any contentionscontrary to the terms and conditions of second deed of agreement,which is reduced into writing. Admittedly, the petitioner is not aparty to the first deed of agreement. When it is not shown that thefirst firm was merged or reconstituted in the second firm, it can bepresumed that the first firm is continues to be in existence. Ifreally, the first firm was dissolved or changed, a personspecifically authorized by the firm should give a notice to theRegistrar of such change of dissolution. Section 63 of thePartnership Act reads as follows:

“63. Recording of changes in and dissolution of a firm:- (1)

When a change occurs in the constitution of a registered firm any incoming, continuing or outgoing parktner and when aregistered firm is dissolved any person who was a partnerimmediately before the dissolution, or the agent of any suchpartner or person specially authorized in this behalf, may givenotice to the Registrar of such change or dissolution, specifyingthe date thereof; and the Registrar shall make a record of thenotice in the entry relating to the firm in the Register of Firms,and shall file the notice along with the statement relating to thefirm filed under Section 59.

Recording of withdrawal of a minor:- (2) When a minor whohas been admitted to the benefits of partnership in a firm attainsmajority and elects to become or not to become a partner andthe firm is then a registered firm, he, or his agent speciallyauthorized in ths behalf, may give notice to the Registrar thathe has or has not become a partner, and the Registrar shalldeal with the notice in the manner provided in sub-section (1).”

37. It is mandatory on the part of the Registrar to recordnotice and file notices along with the statement relating to the firmwhen once the firm gives a notice. The object of said provision isin the interest of trading public as well as partners. It would beeasy to prove the existence of the firm in case a dispute betweenthe parties among the partners themselves or between the tradingpublic and firm. To show that the second firm is reconstituted,the proceedings of the Registrar in terms of Section 63 of thePartnership Act have not been filed by the petitioner. When thepetitioner prima facie fails to prove that the second firm wasreconstituted in pursuance of first firm in pursuance of the firstfirm, she is not entitled to file an application under Section 9 of theAct because, admittedly she is not a party to the first firm and alsothe deed of first firm does not contain any arbitration clause.

38. Coming to the balance of convenience, it must beshown by the petitioner that the comparative mischief of theinconvenience which is likely to arise from withholding theinjunction will be greater than that which is likely to arise bygranting it. The name of first firm and second firm is one and thesame. The Income Tax Returns are being submitted by first firmby referring it as ‘M/s Reliance Builders (Old)’ even afterconstitution of second firm. In all these returns and statement ofaccount, the name of petitioner was not reflected right from theyear 1988. Admittedly, disputes arose between the parties in theyear 2012. After constitution of second firm, tax returns are filed in the name of M/s Reliance Builders (new). Personal/individualincome tax returns submitted by petitioner to show that there aretwo firms namely Reliance Builders (old) and Reliance Builders(new). On the admitted documents (Income Tax Returns) it isclear that first firm is separate and distinct with that of secondfirm.

39. Coming to the aspect of irreparable injury, thepetitioner has not come to Court with clean hands. Suppressingimportant aspects a petition is filed under Section 9 of the Act. There is no iota of evidentiary material to show that the first firmwas reconstituted as second firm. Even if the injunction isrefused, she would not suffer irreparable loss which cannot becompensated in terms of damages. It cannot be said that theincome tax returns being submitted by both firms are fabricatedforeseeing the disputes would crop up between the parties in theyear 2012.

40. When it goes to the jurisdiction of entertaining anapplication under Section 9 of the Act, the Court has to reject thesame. The question of jurisdiction can be raised by therespondents in the O.P. by duly bringing to the notice of the Courtabout jurisdiction of the Court. Therefore, though Order VII Rule11 CPC has no application, still the issue can be decided whetherthe facts of the case falls under Section 9 of the Act.

41. Learned counsel for the petitioner relied on a decisionreported in BHATIA INTERNATIONAL V BULK TRADING S.A. AND[12]ANOTHER, wherein it was held thus (para 29):

“WE see no substance in the submission that there would beunnecessary interference by courts in arbitral proceedings.Section 5 provides that no judicial authority shall interveneexcept where so provided. Section 9 does not permit any or allapplications. It only permits applications for interim measuresmentioned in clauses (i) and (ii) thereof. Thus there cannot beapplications under Section 9 for stay of arbitral proceedings orto challenge the existence or validity of arbitration agreementsor the jurisdiction of the arbitral tribunal. All such challengeswould have to be made before the arbitral tribunal under thesaid Act.

There is no dispute about the law laid down by the apex Court. It is also clear that Section 9 of the Act permits applicationfor interim measures as mentioned therein. The main purpose ofgranting interim measures is the preservation of property indispute till legal rights and conflicting claims of parties beforearbitral proceedings are adjudicated. Interference is called for bythe Court when the application under Section 9 of the Act itself isnot maintainable.

42. It is contended by the learned counsel for respondentsthat the order impugned in this Court is appealable under Section37 of the Act and even Section 37 has no application, theaggrieved person has to file revision before this Court underSection 115 of CPC but not under Article 227 of the Constitution ofIndia. Learned counsel for the respondents relied on a decisionreported in ITI LTD V SIEMENS PUBLIC COMMUNICATIONS[13]NETWORK LTD.,, wherein it was held thus (paras 21 and 22):

“Provisions of S. 37 of the Act of 1996 bars second appeal and notrevision under S. 115 of the Code of Civil Procedure. THE power ofappeal under S. 37(2) of the Act against order of Arbitral Tribunalgranting or refusing to grant an interim measure is conferred on Court.Court is defined in S.2(e) meaning the 'principal Civil Court of originaljurisdiction' which has 'jurisdiction to decide the question forming thesubject-matter of the arbitration if the same had been the subject-matter of the suit.' THE power of appeal having conferred on a CivilCourt all procedural provisions contained in the Code would apply tothe proceedings in appeal. Such proceedings in appeal are not opento second appeal as the same is clearly barred under sub-secton (3)of S. 37. But I agree with the conclusion reached by brother Hegde,J. that the supervisory and revisional jurisdiction of High Court underS. 115 of the Code of Civil Procedure is neither expressly norimpliedly barred either by the provisions of S. 37 or S. 19(1) of theAct. Section 19(1) under Chapter V of Part I of the Act merely statesthat the Arbitral Tribunal shall not be bound by the Code of CivilProcedure. THE said action has no application to the proceedingsbefore Civil Court in exercise of powers in appeal under S. 39(2) ofthe Act.

THE supervisory jurisdiction to be exercised by the High Court underS. 115 of the Code is for the purpose of correcting jurisdictional errorif any committed by Subordinate Court in exercise of power in appealunder S. 37(2) of the Act. THE approach made to the revisional Courtunder S. 115 of the Code is not a resort to remedy of appeal. Inappeal, interference can be made both on facts and law whereas inrevision only errors relating to jurisdiction can be corrected. Suchrevisional remedy is not expressly barred by the provisions of theAct. We have also not found any implied exclusion of the same onexamination of the scheme and relevant provisions of the Act

43. Learned counsel for the petitioner relied on thejudgment in C.A.No.9699 of 2014, dated 14-10-2014 in case of SAMEER SINGH V ABDUL RAB, wherein it was held thus (para 22):

“Whether the executing Court in the obtaining circumstances,has correctly expressed the view that it has become functusofficio or not and thereby it has jurisdiction or not,fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinatecourt exercises its jurisdiction not vested in it by law or failsto exercise the jurisdiction so vested, the said order underSection 115 of the Code is revisable as has been held in JoyChand Lal Babu V Kamalaksha Chaudhury and others(AIR 1949 SC 239). The same principle has been reiteratedi n Keshardeo Chamria v Radha Kissan Chamria andothers (air 1953 sc 23) and Chaube Jagdish Prasad andanother v Ganga Prasad Chaturvedi (AIR 1959 sc 492). Needless to emphasise, the said principle is well-settled. After the amendment of Section 115 CPC w.e.f. 1.7.2002 thesaid power is exercised under Article 227 of the Constitutionas per the principle laid down in Surya Dev Rai (supra). Hadthe executing court apart from expressing the view that it hadbecome functus officio had adjudicated the issues on merits,the question would have been different for in that event therewould have been an adjudication.”

44. He further relied on a decision reported in BABBUMAL

RAICHAND OSWAL V LAXMIBAI R.TARIE AND ANOTHER[[14]],wherein it was held thus (para 7):

“It would, therefore, be seen that the High Court cannot, whileexercising jurisdiction under Art. 227, interfere with findings offact recorded by the subordinate court or tribunal. Its function islimited to seeing that the subordinate court or tribunal functionswithin the limits of its authority. It cannot correct mere errors offact by examining the evidence and reappreciating it. WhatMorris, L. J., said in Rex v. Northumberland CompensationAppeal Tribunal ( (1952-1 All ER 122) in regard to the scopeand ambit of certiorari jurisdiction must apply equally in relationto exercise of jurisdiction under Art. 227. That jurisdictioncannot be exercised:

"as the cloak of an appeal in disguise. It does not lie in order tobring up an order or decision for rehearing of the issues raisedin the proceedings."

If an error of fact, even though apparent on the face, of therecord, can not be corrected by means of a writ of certiorari itshould follow a fortiori that it is not subject to correction by theHigh Court in the exercise of its jurisdiction under Art. 227. THEpower of superintendence under Article 227 cannot be invokedto correct an error of fact which only a superior court can do inexercise of its statutory power as a court of appeal. THE HighCourt cannot in guise of exercising its jurisdiction under Art.227convert itself into a court of appeal when the legislature has notconferred a right of appeal and made the decision of thesubordinate court or tribunal final on facts.”

45. He further relied on a decision reported in SAMEERSURESH GUPTA THROUGH PA HOLDER V RAHUL KUMAR

AGARWAL[[15]], wherein it was held thus (para 7):

“It may be true that a statutory amendment of a rather cognateprovision, like Section 115 of the Civil Procedure Code by theCivil Procedure Code (Amendment) Act, 1999 does not andcannot cut down the ambit of High Court 's power under Article227. At the same time, it must be remembered that suchstatutory amendment does not correspondingly expand theHigh Court 's jurisdiction of superintendence under Article 227.(k) The power is discretionary and has to be exercised onequitable principle. In an appropriate case, the power can beexercised suo motu. (l) On a proper appreciation of the wideand unfettered power of the High Court under Article 227, ittranspires that the main object of this article is to keep strictadministrative and judicial control by the High Court on theadministration of justice within its territory.

(m) The object of superintendence, both administrative andjudicial, is to maintain efficiency, smooth and orderlyfunctioning of the entire machinery of justice in such a way as itdoes not bring it into any disrepute. The power of interferenceunder this article is to be kept to the minimum to ensure thatthe wheel of justice does not come to a halt and the fountain ofjustice remains pure and unpolluted in order to maintain publicconfidence in the functioning of the Tribunals and Courtssubordinate to the High Court.

(n) This reserve and exceptional power of judicial interventionis not to be exercised just for grant of relief in individual casesbut should be directed for promotion of public confidence in theadministration of justice in the larger public interest whereasArticle 226 is meant for protection of individual grievance.Therefore, the power under Article 227 may be unfettered butits exercise is subject to high degree of judicial disciplinepointed out above. (o) An improper and a frequent exercise ofthis power will be counterproductive and will divest thisextraordinary power of its strength and vitality. "

46. He further relied on a decision reported in WARYAM

[16], wherein

SINGH AND ANOTHER V AMARNATH AND ANOTHER

it was held thus (para 14):

“THIS power of superintendence conferred by Article 227 is, aspointed out by Harries, C. J., in - 'Dalmia Jain Airways Ltd. v.Sukumar Mukherjee', AIR 1951 Cal 193 (SB) , to be exercisedmost sparingly and only in appropriate cases in order to keepthe Subordinate Courts within the bounds of their authority andnot for correcting mere errors. As rightly pointed out by theJudicial Commissioner in the case before us the lower Courtsin refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effect declined todo what was by section 13(2)(i) incumbent on them to do andthereby refused to exercise jurisdiction vested in them by law.It was, therefore, a case which called for an interference by theCourt of the Judicial Commissioner and it acted quite properlyin doing so.

In our opinion there is no ground on which in an appeal byspecial leave under Article 136 we should interfere. The appeal,therefore, must stand dismissed with costs.

From the above decisions, it is clear that in certaincircumstances, jurisdiction under Article 227 of the Constitution ofIndia can be exercised when the Act does not contemplate anappeal against an order under Section 9 of the Act. The power ofsuperintendance conferred on High Courts under Article 227 of theConstitution of India over subordinate courts and inferior tribunalis judicial as well as administrative judicial review is to ensure thatthe Courts and tribunals inferior to High Court have done what theywere required to do. Section 37 of the Act reads thus:

“37. Appealabe orders:- (1) An appeal shall lie from thefollowing orders (and from no others) to the court authorized bylaw to hear appeals from original decrees of the court passingthe order, namely:- (a)granting or refusing to grant any measure under Se.9; (b)setting aside or refusing to set aside an arbitral awardunder Section 34.under Section 34.

(2) An appeal shall also lie to a court from an order of the arbitral tribunal:- (a)accepting he plea referred to in sub-section (2) or sub-section (3) or section 16; orsection (3) or section 16; or (b)granting or refusing to grant an interim measure undersection 17.section 17.

(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.”

The present case does not cover under any one of theclauses as referred to under Section 37 of the Act.

47. Insofar as exercising the revisional jurisdiction underSection 115 CPC is concerned, the High Court may call for therecord of any case, which has been decided by any Courtsubordinate to such High Court where no appeal shall lie tosatisfy itself on three aspects viz., 1) that the order passed by thesubordinate court is within its jurisdiction, 2) in case one in which

the Court ought to exercise jurisdiction and 3) that in exercise ofjurisdiction, the Court has not acted illegally i.e., in breach of someprovision of law or with material irregularity i.e., by committingsome error of procedure in the course of trial which is material andthat it may affected the ultimate decision. The primary object ofSection 115 CPC is to prevent subordinate Courts from actingillegally, arbitrarily and capriciously in exercise of theirjurisdiction. Therefore, the revisional power that is to saysupervisory over the subordinate Courts is to ensure that errorsof so grave nature as jurisdiction should be corrected as soon asthey brought to its notice. Even assuming for a moment that therevisional jurisdiction can be exercised under Article 227 of theConstitution of India in respect of the present case, the trial Courthas not committed any illegality or there is no arbitrary action orthe order under challenge causes grave miscarriage of justice. The order under challenge is in accordance with law.

48. For the foregoing reasons, we have no hesitation tohold that filing of O.P.1949 of 2013 by the petitioner herein for therelief sought for is duly misconceived and is not maintainable. Though rejection of O.P. does not come within the parameters ofOrder VII Rule 11 CPC, but in the facts and circumstances of thecase and from the admitted documents available on record and theallegations in the O.P. do not fulfill the requirements under Section9 of the Act. Considering these aspects, the trial Court rightlyallowed I.A.No.2437 of 22013 in O.P.No.1949 of 2013 and the saidorder needs no interference by this Court.

49. Though it is contended by the learned counselappearing for the petitioners that the pleadings are not completeand some of the respondents have not been served, the samecannot be a ground to wait for service of the respondentsespecially when no adverse order is passed against therespondents. Though several respondents have been impleadedas parties, they are not at all necessary parties for deciding theapplication under Section 9 of the Act. As the O.P. filed by thepetitioner herein under Section 9 of the Act is without jurisdiction,non service of some of the respondents does not in any manneraffect the impugned order.

50. Accordingly, the Civil Revision Petition is dismissed.

No order as to costs. Miscellaneous petitions, if any, pending inthis revision shall stand closed.

----------------------- K.C.BHANU, J----------------- ANIS, JDATED: 31[ST ]DAY OF DECEMBER, 2014Hsd Note: L.R. copy to be marked [1](1987) 1 SCC 288[2](2007) 7 SCC 125[3]AIR 2000 CAL 207[4]2010 (1) ALD 453 (DB)[5]2011 LAW SUIT (MAD) 2685[6]AIR 1984 AP 10[7](2010) 13 SCC 88[8](2010) 2 SCC 273[9](2005) 8 SCC 618[10](2007) 6 SCC 798[11]AIR 2006 SC 2422[12](2002) 4 SCC 105[13](2002) 5 SCC 510[14]AIR 1975 SC 1297[15] (2013) 9 SCC 374[16]AIR 1954 SC 215