Nautan Shukla v. Sri Shyamal Kishore Jha

IN THE HIGH COURT OF JUDICATURE AT PATNA

Request Case No.21 of 2015 =========================================================== Nautan Shukla, Wife of Gangadhar Tiwary, Resident of Jai Prakash Nagar College Chauk, Police Station K. Hat, District- Purnea and one of the Partner of M/s Krishna Construction, a registered partnership firm situated at Teachers Colony, Bhatta, District- Purnea .... .... Petitioner/s

Versus

Sri Shyamal Kishore Jha, Son of Late Krishna Chand Jha, Resident of MohalaTeachers Colony, Bhatta Bazar, Police Station- K. Hat, District Purnea, permanent resident of Village- Khushru Patti Police Station Murligang. District Madhepura and another partner of M/s Krishna Construction situated at Teachers Colony, Bhatta Bazar, P.S.- K. Hat, District Purnea .... .... Respondent/s =========================================================== Appearance :

For the Petitioner/s : Mr. Gyan Prakash Ojha, Advocate For the Respondent/s :

=========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL JUDGMENT Date: 07-04-2017 This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 has been filed for constitution of an Arbitral Tribunal.

The so-called arbitration clause, as alleged by the petitioner in the agreement in question reads as under: "18. That any dispute or difference that may arise between the partners regarding the Partnership or its business or regarding the interpretation of these presents or any matter arising out of or incidental there to shall be referred at the first instance to the Arbitration of arbitrator or arbitrators appointed by the partners and only in case of the dispute being undecided, the partners may proceed in accordance with other provision of law for the time being in force."

(emphasis supplied)

Patna High Court REQ. CASE No.21 of 2015 dt.07-04-2017 2/2 From the aforesaid, it is clear that in case a dispute between the parties prevails, the agreement provides that the same shall be referred at the first instance to the arbitration of arbitrator or arbitrators appointed by the partners and if the dispute is not resolved in that manner, the only procedure available is to take recourse to remedy in accordance with the common law. There is no specific agreement for resolution of the dispute by resorting to the procedure contemplated under the Arbitration and Conciliation Act of 1996.

That being so, the agreement in question cannot be considered to be an arbitration agreement in the strict sense. As a consequence thereof, provisions of Section 11(6) of Arbitration and Conciliation Act, 1996 cannot be invoked in the present case. There being no arbitration agreement between the parties, I see no reason to invoke jurisdiction of this Court.

The application is, accordingly, dismissed.

(Rajendra Menon, CJ) K.C.jha/- AFR/NAFR NAFR CAV DATE N/A Uploading Date 17.4.2017 Transmission Date N/A