S.K.Mookherjee, J. - (1.) THIS appeal is directed against Order No. 9, dated 3rd January, 1994, passed by the learned Assistant District Judge, Malda, in P. Suit No. 145/93 whereby the learned Judge rejected an application under section 34 of the Arbitration Act preferred on behalf of the defendant, who is the appellant before us, and allowed an application for appointment of Receiver, preferred on behalf of the plaintiffs/respondents.
(2.) WE have heard Mr. Bose, in support of the appeal and Mr. Roy Chowdhury, for the contesting respondents. As already stated there Was a prayer under section 34 of the Arbitration Act, which stood rejected. The said prayer has been sought to be justified on the basis of an allegation or assertion in the application made by the defendant/appellant that there was a partnership agreement in existence between the plaintiff and respondents 1 and 3 and such partnership agreement embodied a Clause for reference of disputes between the partners to arbitration. In view of existence of such a Clause in the agreement, according to the defendant/appellant, the suit ought to have been stayed in terms of his. prayer, particularly, when the plaint did not ask for a declaration that the partnership deed was void. On this point, though the learned Trial Judge has given elaborate reasons for rejection of the prayer for stay made on behalf of the defendant/appellant, we, do not propose to weigh the merit of the said reasons, as, in our view the conclusion of the learned Trial Judge is sustainable on a simpler reason, appearing from the language of the statutory provision itself. Admittedly, apart from the alleged partners, other persons are parties to the present suit. But the section, for being attracted, requires that the proceeding must be confined to the parties to the said arbitration agreement or persons claiming under them. Secondly, the properties, which are the subject matters of the suit and over which the disputes have arisen, are not the properties of the partnership and cannot, prima facie, be said to constitute "matters agreed to be referred" within the meaning of section 34 of the Arbitration Act ; the portion of the Order refusing the prayer for stay, therefore, is sustainable on the above grounds. WE, accordingly, affirm the said part of the conclusion of the learned Trial Judge. So far as the prayer for appointment of Receiver is concerned, admittedly, again, the same can be treated, for all practical purposes, as an ex-parte order, in a broad sense, as the learned Advocate, for the defendants, did forbear from malting any submission with regard to that prayer and that has been expressly recorded in the judgement. In our view, it will not be is consonance with justice to appoint a Receiver in such a situation without giving adequate opportunities to the parties to make their submissions and the procedure followed by the learned Judge, in disposing of both the prayers, simultaneously, may be said to have resulted in miscarriage of justice. We, accordingly, set aside the part of the order allowing the prayer for appointment of Receiver and remand the application for appointment of Receiver to the learned Trial Judge for consideration afresh giving opportunities to the defendants to file their objections to the same.
(3.) IN the result, the appeal succeeds in part and is allowed, in part, to the extent indicated above. The learned Trial Judge is directed to hear out the Receiver application in the manner as mentioned above and dispose of the same as expeditiously as possible and preferably within a period of six weeks from the date of communication of this Order to the concerned Court. There will be no order as to costs.;