Excelsior Correspondent
Srinagar, Feb 3 Chief Justice of the High Court held that the decision of the lower court cannot come in the way of the High Court as to whether the dispute arising between the parties can be referred to an arbitrator or not.
The finding was given by the Chief Justice N Kotiswar Singh while hearing a plea seeking appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act for settlement of business dispute between the parties.
The application was filed for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act by the petitioner-Sweety Rashid against her husband Bilal Ahmad Ganai and her sister-in-law. The trio had set up a partnership firm, “M/S B. A. G. Enterprises” for which a Partnership Deed was executed on 12.04.2018.
One party in order to settle the dispute had approached the court of Additional Sessions Judge Srinagar, and sought interim order to prevent the other party from operating the Partnership Firm Account and also to restrain from running the business of the partnership firm. The plea was rejected by the court below against which an appeal was preferred which is stated to be pending now.
The other party has categorically stated that there is no dispute between the petitioner and the respondents, in as much as, there is no contractual relationship or business involving the petitioner in which a dispute has arisen.
The CJ, however, observed that the actual existence of a dispute arising out of the partnership firm is something which can be examined by an arbitrator and not by this court.
The CJ on dismissal of the plea by the Additional Sessions Judge who refused to grant any relief under Section 9 of the Act, said, it is apparent that the relief was declined only on the failure of the petitioner to make out prima facie case to show irreparable loss and injury which may be caused to the petitioner.
“It cannot be said that merely because the petitioner has failed to make out prima facie case to get any relief under Section 9 of the Act, it cannot be hold that there is no merit in the matter as the same can be proved after adducing evidence which is required for the purpose of benefit under Section 9 of the Act”, CJ recorded.
The CJ while setting aside the decision of court below has held that the decision cannot come in the way of this Court in deciding as to whether there is any Arbitration Clause in the agreement between the parties and whether any such dispute arising between the parties can be referred to arbitration.
The finding by the 4th Additional District and Sessions Judge, Srinagar, cannot be said to be final and determinative of the issue as to whether there exists any dispute as the finding of the 4th Additional District Judge was based on prima facie satisfaction and it is not a decree finally deciding the issues raised after a full course trial involving adducing of evidence by the parties”, reads the judgment.
The CJ accordingly, appointed Justice Muzaffar Hussain Attar (Former Judge of the High Court of J&K and Ladakh) as the Arbitrator and requested him proceed in the matter in accordance with the provisions of the Arbitration and Conciliation Act and make the Award within the time provided in the Act itself.
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