Ravi Swaroop Dhavan, J. - (1.) The present writ petition raises the issue in effect that notwithstanding the fact that there may be an agreement on record which contains an arbitration clause, a legal representative of one party to the agreement cannot have recourse to claims arising out of such an agreement. The legal representative of a partner one Murlidhar Kanodia instituted an application Under Sec. 20 of the Arbitration Act of 1940 (hereinafter referred to as the Act) before the and Civil Judge, Kanpur (hereinafter referred to as the Civil Judge) by which they sought that the agreement in reference to the context, by which the aforesaid Murlidhar Kanodia was a partner be filed before the court and consequently a reference be made to an Arbitrator agreed to by the parties or in the event of disagreement between them, to an Arbitrator appointed by the court ; other consequential reliefs were also prayed for.
(2.) A preliminary objection was taken before the Civil Judge by the Petitioner who was arrayed as a Defendant -opposite party No. 3 before the Civil Judge, to the effect, that an application Under Sec. 20 of the Act as filed, was not maintainable and without jurisdiction as upon the death of Murlidhar Kanodia the partnership deed stood dissolved and the agreement between the pawners ceased to exist or be operative. Upon this objection, the Petitioner sought, and a preliminary issue was framed and was numbered as issue no 3. This issue was to the effect: whether the application Under Sec. 20 of the Act, as filed before the Civil Judge was maintainable or not? This preliminary issue was decided by the Civil Judge by an order dated 10th August, 1976. It was decided against the Petitioner (opposite party No. 3) and has given rise to the present writ petition under Article 226 of the Constitution of India. These are the facts which are relevant in so far as the present writ petition is concerned The other facts which have been mentioned in the writ petition are the chronology of events placing on record that there was a partnership initially between Messrs Manoharlal Kanodia, Murlidhar Kanodia, Jagmohan Lai Kanodia and Mrs. Hira -ati Kanodia. Manoharlal Kanodia died in 19o0 and a new partnership was constituted with the erstwhile three surviving partners and Satya Prakash Kanodia. The second partnership also did not last long when the aforesaid Satya Prakash Kanodia gave a notice dated 14th November, 1967 seeking a dissolution. Subsequently came a partnership, through a deed dated 5th January, 1968 between Messrs Murlidhar Kanodia, Jagmobanlal Kanodia and Hirawati Kanodia. This partnership was dated 2nd August 1970. This partnership saw dissolution too, upon the death of Murlidhar Kanodia, on the 2nd August, 1970. For the purposes of the present writ petition the chronology till the death of Murlidhar Kanodia is relevant (though it may be mentioned that there were subsequent partnerships also between some of the surviving partners and others). Suffice it to say that the record maices it abundantly clear that by and large the partners were the members of the family.
(3.) That once who moved the Court of the Civil Judge by an application Under Sec. 20 of the Act were, the wife of Murlidhar Kanodia, Mrs. Sahodra Devi Kanodia and three sons, Jagdish Prasad Kanodia, Vijai Prakash Kanodia and Arvind Prakash Kanodia. In effect the heirs of Murlidhar Kanodia in reference to the time when he was a partner along with the others sought claims arising out of the agreement which bound the partners inter se. The heirs, in effect, sought accounting. This they contended in paragraph 5 of their application Under Sec. 20 of the Act, aforesaid, had not been done either with their predecessor, though whom they had laid their claiois, or with them. It is this application Under Sec. 20 of the Act by the heirs of the aforesaid late Murlidhar Kanodia, which was objected to by the Respondent No. 3 on the ground that it was misconceived, not maintainable and without jurisdiction.;