under section 9 of Arbitration and Conciliation Act, 1996, no orders of permanent in nature can be passed - Application by a Partner of an Unregistered Firm - Partnership Act does not affect the maintainability of an application under Section 9 of A & C Act

Citation

CDJ 2004 SC 249

Ashok Traders vs. Gurumukh Das Saluja

Head Note

Arbitration and Concillation Act, 1996 - Section 9 - Maintainability of Application by a Partner of an Unregistered Firm - Prima facie, the bar enacted by Section 69 of the Partnership Act does not affect the maintainability of an application under Section 9 of A & C Act - The right conferred by Section 9 is on a party to an arbitration agreement. The time or the stage for invoking the jurisdiction of Court under Section 9 can be (i) before, or (ii) during arbitral proceedings, or (iii) at any time after the making of the arbitral award but before it is enforced in accordance with Section 36 - The right conferred by Section 9 cannot be said to be one arising out of a contract. The qualification which the person invoking jurisdiction of the Court under Section 9 must possess is of being a 'party' to an arbitration agreement. A person not party to an arbitration agreement cannot enter the Court for protection under Section 9 - The relief sought for in an application under Section 9 of A & C Act is neither in a suit nor a right arising from a contract. The right arising from the partnership deed or conferred by the Partnership Act is being enforced in the arbitral tribunal; the Court under Section 9 is only formulating interim measures so as to protect the right under application before the arbitral tribunal from being frustrated. Section 69 of the Partnership Act has no bearing on the right of a party to an arbitration clause to file an application under Section 9 of A & C Act.

Para 12 to 13

Indian Partnership Act, 1932 - Section 69 - Maintainability of Application by a Partner of an Unregistered Firm Under Section 9 Arbitration and Concillation Act, 1996 - Prima facie, the bar enacted by Section 69 of the Partnership Act does not affect the maintainability of an application under Section 9 of A & C Act - The right conferred by Section 9 is on a party to an arbitration agreement. The time or the stage for invoking the jurisdiction of Court under Section 9 can be (i) before, or (ii) during arbitral proceedings, or (iii) at any time after the making of the arbitral award but before it is enforced in accordance with Section 36 - The right conferred by Section 9 cannot be said to be one arising out of a contract. The qualification which the person invoking jurisdiction of the Court under Section 9 must possess is of being a 'party' to an arbitration agreement. A person not party to an arbitration agreement cannot enter the Court for protection under Section 9 - The relief sought for in an application under Section 9 of A & C Act is neither in a suit nor a right arising from a contract. The right arising from the partnership deed or conferred by the Partnership Act is being enforced in the arbitral tribunal; the Court under Section 9 is only formulating interim measures so as to protect the right under application before the arbitral tribunal from being frustrated. Section 69 of the Partnership Act has no bearing on the right of a party to an arbitration clause to file an application under Section 9 of A & C Act.

Para 12 to 13

COMPARATIVE CITATIONS:
2004 AIR(SC) 1433, 2004 (1) RAJ 270, 2004 (2) JT 352, 2004 (1) Scale 297, 2004 (1) Supreme 754, 2004 (2) SRJ 565, 2004 (1) ArbLR 141, 2004 (3) SCC 155, 2004 (2) CTC 208 (SC), 2004 (3) MAH.L.J 592, 2004 (3) MPLJ 266, 2004 (16) AIC 129, 2004 (3) LW 548

Firm Ashok Traders vs. Gurumukh Das Saluja (A.I.R. 2004 SC 1433) and further held as under:

"21. That a part, the Court below had made a reference of the decision rendered by the apex Court in Firm Ashok Traders v. Gurumukh Das Saluja . In the said decision, Their Lordships of the apex Court, while dealing with the scope of Section 9 of the Act, held that the expression "interim relief" that is sought for by a party, or granted by the Court, shall fall within the meaning of the expression "an interim measure of protection." Their Lordships clarified that there is clear distinction between 'permanent protection' and 'interim protection.'