- (1.) Heard Shri Chandra Bhan Gupta, learned Counsel for the Petitioner. Facts giving rise to the dispute are as under. Petitioner and Respondent No. 1 entered into a partnership to carry out business in the name and style of M/s. Metals & Methods vide partnership deed dated 4.4.1997. The said firm was engaged in the business of Foundry and Binders. There was a dispute amongst the partners, and the Petitioner filed a suit for dissolution of the partnership firm, rendition of account as well as partition of the partnership property and possession and injunction, impleading the other partner of firm and the firm as Defendants. Defendant-Respondent No. 3, who is stated to be a tenant in the property belonging to the partnership firm was also impleaded. In response to the summons and notice, the Defendants put in appearance and filed written statement dated 15.5.2006. A specific plea was taken in the written statement that the subject-matter of the suit being covered by the arbitration agreement entered into between the parties, the suit was not maintainable.
(2.) An application dated 9.9.2008 was moved by the Defendant-Respondents with a prayer that the proceedings of the suit may be terminated and the parties be referred to arbitration. The application was contested by the Plaintiff-Petitioner. However, vide order dated 4.2.2009, the trial Court allowed the application and directed the case to be fixed for being referred to arbitration. Dissatisfied with the order, the Plaintiff-Petitioner filed a review application, which has been dismissed by the trial Court vide order dated 27.10.2009. Aggrieved, the Petitioner has approached this Court.
(3.) It has been contended by the learned Counsel for the Petitioner that the application filed by the Defendant-Respondents under Section 8 of the Arbitration Act, was not maintainable and has wrongly and illegally been allowed by the trial Court, inasmuch as in view of provision of Section 8 of the Arbitration and Conciliation Act (for short hereinafter referred to as the 'Act'), the plea is to be raised at the time of submitting the first statement on the substance of the dispute and any application moved at a later point of time is not maintainable and liable to be dismissed. It has further been submitted that since Respondent No. 3 was also made a party in the suit, who is not a party to the partnership deed, hence, the matter could not have been referred to Arbitration.;