Salil K.Roy Chowdhury, J. - (1.) THE COURT:
(2.) THIS is an application under Section 20 of the Arbitration Act. The petitioner's case as laid down in the petition, which is not disputed by the respondents, who are appearing before me as they have entered caveat to the present application, that by a deed of partnership dated 6th March 1977 the parties to the proceedings entered into a partnership to carry on business as exhibitors of cinematographic films under the name and style New Cinema Co. under the terms and conditions contained in the said partnership deed. It is also admitted that the said partnership was at will and a notice of dissolution has been served on the respondents, some of them are in Calcutta within the jurisdiction, for dissolution of the said partnership by a letter dated 26th March 1980 and it is stated in para 10 of the petition that the petitioner is entitled to the properties of the said partnership firm after payment of the debts and liabilities thereof and to have the surplus distributed amongst the partners according to the respective rights but the respondents Nos. 5 and 6, who are residents of Darjeeling District, are disputing the claim of the petitioner and as such the petitioner has made this application under Section 20 for filing the arbitration agreement and reference of the said disputes which have arisen after the dissolution of the partnership regarding collection of debts and liabilities and winding up of the firm according to the shares of the parties under the Partnership Act. Admittedly the partnership deed contains an arbitration clause of very wide amplitude which is set out in para 1, sub-para (i) of the petition being the Clause 31 of the partnership deed. It is admitted that the partnership business contains both movable and immovable as set out in the schedule of the said partnership deed which are annexed to the petition at pages 30 to 32. THIS being an application under Section 20 certain conditions, as laid down in Section 20, Sub-section (1), have to be satisfied i. e., there is no suit pending regarding the subject-matter of the suit or any part of it and also difference has arisen to which the arbitration agreement applies and the court in which the application is made is a court having jurisdiction in the matter to which the agreement relates. There is no dispute that there is an arbitration agreement before filing any suit on the subject-matter of the agreement and there is also no dispute that dispute has arisen after the dissolution of the partnership and the only dispute sought to be raised is the question of jurisdiction of this court as the said partnership has admittedly immovable properties in Siliguri where part of the partnership business as exhibitors was carried on. It is also clear from the pleading in the petition that part of the cause of action has arisen within the jurisdiction of this court being the business carried on in Calcutta by drawing cheques in Calcutta by some of the partners and also the notice of dissolution was served in Calcutta on some of the respondents. It has been specifically mentioned in para 12 of the petition as to what part of the cause of action has arisen within the jurisdiction of this court. Therefore, the test is as to whether this court has jurisdiction to entertain a suit had the subject-matter of the reference would have been the subject-matter of a suit in this court or not Mr. J. N. Ray, appearing for respondents Nos. 5 and 6, who are residing at Siliguri and Mahanandapara, District Darjeeling, submitted that from the petition only dispute is the distribution of the assets and payment of liabilities of the dissolved firm and as the dissolved firm includes immovable properties being cinema house at Siliguri this court has no jurisdiction as the suit would be the suit for land as the partnership possesses immovable properties admittedly. In support of his contention Mr. Roy cited a Division Bench decision of this court in AIR 1955 NUC 5612 where it was held that contract granting exclusive right and licence for stated number of years to cut and fell bamboo and remove them from the specified area is a right to use the land, roads and stream and thereby creating an interest in the land where the bamboo is situated and, therefore, the land being outside the jurisdiction of the court application under Section 20 of the Arbitration Act in this Court being the Calcutta Court cannot be entertained. Relying on the said decision Mr. Roy submitted that distribution of partnership assets, which include immovable properties, must be held to be a right to immovable properties and the said properties admittedly situated outside the jurisdiction of this Court no application can be entertained by this Court and this is not the Court within the meaning of Section 2 (c) of the Arbitration Act. Mr. Roy also cited a decision of the Allahabad High Court in Indian Mineral Co. v. Northern India Lime Marketing Association, where it was held that to determine the jurisdiction and to find out what is the subject matter of the reference, as if the same had been the subject matter of a suit, the Court necessarily has to weigh the pleading of the parties in order to find out as to what are the points of difference between the parties. The Court has, therefore, to formulate the issues which the Arbitrator is called upon to decide. Those are set out from the Head Note-B which have faithfully reproduced the judgment and relying on the said decision, Mr. Roy submitted that here the petitioner has failed to formulate the points of difference and, in any way, the only difference as set out in para 10 of the petition relates to immovable property also and has not clearly specified difference and as such the Section 20 application is not maintainable.
(3.) MR. Roy also referred to a Division Bench decision of the Madras High Court in Electric Manufacturing Co. Ltd., Calcutta v. Corporation Engineering Co., where it was held that the subject matter of the dispute under reference being entirely outside the jurisdiction of the Court, where an application under Section 20 was sought to be filed, the said Court being the Madras High Court had no jurisdiction to entertain the same, as that was not the Court under Section 2 (c) of the Arbitration Act. Relying on the said decision, MR. Roy submitted that the only dispute, if any, is regarding the immovable properties of the partnership which are situated in Siliguri, admittedly outside the jurisdiction of this Court, being the subject matter of the dispute to be referred, this Court is not the Court under Section 2 (c) of the Arbitration Act. Therefore, this Court will not entertain the application under Section 20 of the Arbitration Act. MR. Roy referred to para 10 of the petition and submitted that that is the only dispute sought to be raised by the petitioner and that includes the sale of immovable property and, therefore, this Court has no jurisdiction under Section 20 (1) read with Section 2 (c) of the Arbitration Act and the present application is not maintainable and Section 20 application should not be allowed to be filed in this Court which has no jurisdiction,;