SIBGHAT ULLAH KHAN,J. - (1.) IN this case on 23.11.2010 following order was passed : "Hon'ble The Chief Justice through order dated 17.11.2011 nominated this Bench to hear this appeal and fixed today's date in view of the direction of the Supreme Court to decide the matter very expeditiously. Heard learned counsel for the parties.
(2.) RESPONDENT nos. 2 to 4 i.e. arbitrator and two witnesses of the agreement (alleged agreement) dated 5.1.1983 have not yet been served in appeal. However, Sri Ranjit Saxena, learned counsel for the appellant states that it is not necessary to take fresh steps to serve them as they were also defendants along with the appellant and this appeal is directed against judgment and decree through which trial court has rejected the plaint under Order 7 Rule 11 C.P.C. on the application of defendant respondent no.1 represented by Sri Triveni Shankar, learned counsel.
(3.) SRI Ranjit Saxena, learned counsel for the appellant wanted to address the Court on the question of genuineness or otherwise of the agreement dated 5.1.1983. However, we did not permit him to raise the arguments as that would have been beyond the scope of this appeal. The Hon. Supreme Court observed that: "All pleas are left open to the parties to be urged before the High Court including the plea of forgery." We interpret the said part of Supreme Court order as meaning that High Court is required to decide all the pleas which are raised including plea of forgery provided that the same is within the scope of the proceedings pending before the High Court. Gist of the arguments is given below: - The main argument on merit of learned counsel of the appellant is that an application under Order 7 Rule 11 C.P.C. filed by defendant respondent no.1 had already been rejected on 29.7.2010 hence within one month therefrom similar second application was not maintainable and it could not be allowed. The reply to this contention by Sri Triveni Shankar, learned counsel for the defendant respondent no.1 is that just the other day i.e. on 30.7.2010 Delhi High Court had dismissed the appeal of the present plaintiff appellant hence that gave a fresh cause of action to the defendant respondent no.1 to file another application under Order 7 Rule 11 C.P.C. read with Section 151 C.P.C. and by virtue of Section 35 and 37 of Arbitration Act the rejection of objection against arbitration award becomes final only after decision of appeal. Sri Triveni Shankar, learned counsel for the respondent no.1 has further argued that Arbitration Act is a self contained code and even challenge to the agreement for partnership can be decided only under the said Act and not by Civil court. Both the parties have cited several authorities. Sri Ranjit Saxena, learned counsel has mainly placed reliance upon N. Radha Krishnan Vs. Maestro Engineers and others 2010 (1) S.C.C. Page 72. Judgment is reserved." This First Appeal has been filed under Section 96 C.P.C. against judgment and decree dated 21.2.2011 passed by Civil Judge (Senior Division), Gautam Buddah Nagar in Original Suit No.411 of 2002 Smt. Rakesh Bala Aneja vs. Smt. Sushil Bajaj and others rejecting the plaint under Order 7 Rule 11 C.P.C. read with Section 151 C.P.C. The first effective relief claimed in the plaint was that the deed dated 5.1.1983 (of partnership) be declared as null and void. The second effective relief was for permanent injunction restraining defendant no.2 Shri J.S. Sood, the Arbitrator to further proceed in arbitration proceedings as sole arbitrator. The arbitrator gave the award on 4/23.8.2003. The Arbitrator specifically rejected the plea that the basic agreement /deed of partnership dated 5.1.1983 was forged.;