M SUBRAMANIAN Vs. NACHIAPPA BOREWELL SERVICES BANGALORE

JUDGEMENT

(1.) The civil revision petition and the appeal are directed effectively against a common order dated 8-7-1992 whereunder L.As. II and IV have been rejected and the interim relief earlier granted to the present petitioner was vacated. Briefly stated, the dispute centered around a situation where the petitioner-plaintiff was a partner of the first defendant-Firm along with defendants 2 and 3. The business related to the construction of borewells. The plaintiffs case was that the main asset of the Firm was a heavy duty truck fitted with an elaborate rig and that this was a very valuable item. Pursuant to some problems that had arisen between the parties, the plaintiff moved the Court by way of a suit for accounts, etc. and the interim relief prayed for was that the respondents be restrained from parting with possession of or alienating the vehicle in question and in the alternative, the plaintiff had prayed that he should be permitted to retain the vehicle until further orders. Both these reliefs were granted but after hearing the parties the Court vacated the ad interim orders and it is against this common order that the appeal and the civil revision petition have been preferred. I need to record here that the learned Judge has prima facie come to the conclusion that there is no dispute about the fact that the plaintiff is a partner and further more that the vehicle in question did belong to the partnership firm. The plaintiff had expressed the apprehension that if the vehicle was alienated or disposed of, that it would prejudice his rights and therefore he had asked for the two reliefs referred to above. The learned Judge has virtually non-suited the plaintiff by virtue of the findings in the latter part of the order. The defendants had taken up the contention that, the partnership deed provided for the usual arbitration clause and the learned Judge has upheld the defence that if any disputes arose between the parties that they were obliged to approach the arbitrator for resolving of those disputes. The learned Judge points out that the plaintiff has not invoked the arbitration clause and consequently, he holds that since the plaintiff was obliged to approach an arbitrator for redressal of any disputes, that he is consequently debarred from approaching the Civil Court for any relief in regard to such suit. The Civil Judge has held that there is a total ouster of the jurisdiction of the Civil Court and this is virtually the only ground on which the earlier orders have been vacated. Petitioner's learned Advocate has submitted that this is a total misreading of the law. He has pointed out on the basis of several well-settled decisions that the principles of law in such instances are well-defined and that the jurisdiction of a Civil Court is not totally and completely debarred in all such cases. Undoubtedly, there is an obligation on the part of the parties to first approach an arbitrator for resolving those disputes but this is an alternative remedy. If a situation arises whereby it is imperative for one of the parties to obtain a type of relief which an arbitrator cannot grant, it would be one of the situations wherein the invocation of the jurisdiction of the Civil Court is justified. In the present case if the plaintiff does not secure the interim orders restraining the defendants from alienating the property namely the vehicle in question, the entire case of the plaintiff would probably be frustrated. The relief cannot be granted by an arbitrator who has no power to do so and there can be no two opinions about the fact that in such situations the plaintiff was fully justified in approaching the Civil Court again, for purposes of obtaining such a relief. It would be necessary to refer to the totality of the dispute and it would be absurd to hold that only as far as the relief concerning the property that the party should approach the Civil Court and that the rest of the partnership dispute should go to the arbitrator. The Civil Court being seized of the matter must and should necessarily adjudicate the whole dispute.

(2.) The defence that has been pleaded is that it is wholly and completely incumbent on the part of the plaintiff to first approach the arbitrator and that a civil remedy is barred unless this is done. I have already observed that there are valid reasons why such a view cannot be upheld but more importantly, there is another aspect of the law which the learned trial Judge has overlooked and which the petitioner's learned Advocate has emphasised with considerable force. Even where an alternate remedy is available and a party can be directed to avail of that alternate remedy, it is well-settled law that the objecting party must at the earliest point of time point it out to the Court so that judicial time can be saved and the party in the first instance can be directed elsewhere. In situations where a party has taken part in the litigation such as the present one, where the written statement has been filed and the party has effectively defended the proceeding for a considerable period of time, the raising of the jurisdiction aspect was nothing more than an after-thought and should never have been upheld.

(3.) Prima facie, there is sufficient material on record to justify the grant of the interim relief. I have however pointed out to the petitioner's learned Advocate that the two reliefs asked for are in the alternative and that consequently only one of them is capable of being granted. To my mind it is appropriate to direct that, pending hearing and final disposal of the suit, defendants 1 to 3 be restrained from parting with, alienating or disposing of in any manner the vehicle that is the subject-matter of this dispute. It is clarified that if such a need were to arise, that an application may be made to the Trial Court and after hearing the parties the Trial Court shall pass appropriate orders.