BHAGWAN DAS GOEL (DEAD) THROUGH HIS LRS. & ORS.versusPYARE KISHAN AGARWAL

                       [2019] 6 S.C.R. 457                            457


          BHAGWAN DAS GOEL (DEAD) THROUGH                             A
                        HIS LRS. & ORS.
                                v.
                  PYARE KISHAN AGARWAL
                                                                      B
                  (Civil Appeal No.3399 of 2019)
                         APRIL 04, 2019
              [ABHAY MANOHAR SAPRE AND
                DINESH MAHESHWARI, JJ.]
                                                                      C
      Arbitration Act, 1940:
       s. 20 – Application for appointment of arbitrator – In terms
of arbitration clause in the partnership deed – Preliminary
objection as to maintainability of the application on the ground
that the same was barred u/s. 69(3) of Partnership Act as it was an   D
unregistered partnership – Courts below held that the application
was maintainable – On appeal, held: Matter remitted to High Court
for deciding the issue keeping in view law laid down in *Krishna
Motor Service case – Partnership Act, 1932 – s.69(3).
      Allowing the appeal, the Court                                  E
       HELD: High Court did not decide the issue, which was the
subject matter of the writ petition, keeping in view the law laid
down by this Court in the case of *Krishna Motor Service case.
Therefore, the matter should be remitted to the High Court for
deciding the writ petition afresh on merits keeping in view the       F
law laid down by this Court in the case of *Krishna Motor Ser-
vice. [Paras 12 and 14][459-E; G]
      Krishna Motor Service by its Partners v. H.B. Vittala
      Kamath (1996) 10 SCC 88 : [1996] 1 Suppl. SCR 594
      – referred to.                                                  G
                       Case Law Reference
       [1996] 1 Suppl. SCR 594       referred to      Para 12


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                               457
458            SUPREME COURT REPORTS                          [2019] 6 S.C.R.


A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3399
      of 2019
             From the Judgment and Order dated 14.05.2012 of the High Court
      of Judicature at Allahabad in Writ C. No. 14839 of 1993.
             Rishi Malhotra, Utkarsh Singh, Advs. for the Appellants.
B            Mrs. Rani Chhabra, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J.
             1. Leave granted.
             2. This appeal is directed against the final judgment and order
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      dated 14.05.2012 passed by the High Court of Judicature at Allahabad
      in Writ C. No.14839/1993 whereby the High Court dismissed the writ
      petition filed by the appellants herein and upheld the order dated
      18.03.1993 passed by the Civil Judge, Jhansi in O.S. No.140/1992.
             3. A few facts need mention hereinbelow for the disposal of this
D     appeal, which involves a short point.
             4. The appellants are the legal representatives of the original
      defendants and the respondent herein is the plaintiff of the suit out of
      which this appeal arises.
             5. The respondent filed an application under Section 20 of the
E     Arbitration Act, 1940 (since repealed) against the appellants’
      predecessors-in-title. The application was founded on the allegations
      inter alia that there was a partnership between the appellants’
      predecessors-in-title with the respondent on 05.07.1960 by name “Gupta
      Bus Service”.
F            6. However, the disputes arose between the partners of this
      firm(Gupta Bus Service), which resulted in its dissolution. It was alleged
      that Clause 11 of the Partnership Deed provides for resolution of disputes
      arising out of the partnership between the parties by an Arbitrator. The
      respondent, therefore, prayed that an Arbitrator be appointed in terms of
      Clause 11 of the Partnership Deed for deciding the disputes, which have
G     arisen between the parties relating to the partnership.
            7. The appellants (defendants) on being served raised a preliminary
      objection contending therein that since the partnership in question on
      which the application under Section 20 of the Arbitration Act, 1940 was
      founded was an “unregistered partnership”, therefore, in the light of the
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      BHAGWAN DAS GOEL (D) THR. HIS LRS. v. PYARE                              459
      KISHAN AGARWAL [ABHAY MANOHAR SAPRE, J.]

bar contained under Section 69 (3) of the Partnership Act, the application     A
filed by the respondent was not maintainable, therefore, it was liable to
be dismissed as such.
      8. The Civil Judge by order dated 18.03.1993 overruled the
objection raised by the appellants (defendants) and held that the
application filed by the respondent (plaintiff) is maintainable. The           B
appellants (defendants) felt aggrieved and filed writ petition in the High
Court at Allahabad under Article 227 of the Constitution of India.
       9. By impugned order, the High Court dismissed the writ petition
and upheld the order of the Civil Judge, which has given rise to filing of
this appeal by way of special leave by the defendants in this Court.           C
      10. So, the short question, which arises for consideration in this
appeal, is whether the High Court was justified in dismissing the
appellants’ writ petition.
       11. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow this appeal and while      D
setting aside the impugned order remand the case to the High Court for
deciding the writ petition afresh on merits in the light of the observations
made infra.
       12. In our considered view, the need to remand the case has
occasioned because we find that the High Court did not decide the issue,       E
which was the subject matter of the writ petition, keeping in view the
law laid down by this Court in the case of Krishna Motor Service by
its Partners vs. H.B. Vittala Kamath, 1996 (10) SCC 88.
       13. In our view, the High Court should have noticed the
aforementioned decision and decided the question accordingly in the            F
light of law laid down therein. The High Court unfortunately did not take
note of the said decision and has thus committed an error requiring
interference of this Court.
      14. It is for this reason, we are of the considered view that the
matter should be remitted to the High Court for deciding the writ petition     G
afresh on merits keeping in view the law laid down by this Court in the
case of Krishna Motor Service (supra).
      15. In view of the foregoing discussion, the appeal succeeds and
is accordingly allowed. The impugned order is set aside. The case is
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460             SUPREME COURT REPORTS                          [2019] 6 S.C.R.


A     remanded to the High Court for deciding the writ petition, out of which
      this appeal arises, afresh on merits as observed above.
             16. Since we have formed an opinion to remand the case to the
      High Court instead of deciding the issue for the first time in this appeal
      on facts, we refrain ourselves from exercising the issue on merits. The
B     High Court will, therefore, decide the matter strictly in accordance with
      law uninfluenced by any observations made in the impugned order and
      this order.
            17. Since the matter is quite old, we request the High Court to
      dispose of the writ petition as expeditiously as possible preferably within
C     six months.


      Kalpana K. Tripathy                                           Appeal allowed.



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