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Applicability of arbitration proceedings arising out of the deed of an unregistered partnership firm

On Friday, the 30th September 2022, the Calcutta High Court heard an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (‘Arbitration Act’) for the appointment of an arbitrator to assist the parties in resolving their conflict and held that the bars for establishing a suit or any other proceeding under Section 69 of the Indian Partnership Act, 1932 (‘Partnership Act’) should not apply to arbitration proceedings under Section 11 of the Arbitration Act.

Applicability of arbitration proceedings arising

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The case was that the partnership deed though has an arbitration clause, but the firm was not registered with the Registrar of Firms (ROF); the question of law that was to be decided was whether a partner of an unregistered firm can invoke arbitration and if the section 69 of the Partnership Act bars it.

Respondents opposed the appointment of an arbitrator because the partnership firm was ‘unregistered’; the dispute could not be submitted to an arbitrator because of the application of the bar imposed by Section 69 of the Partnership Act. Their argument was that because sub-sections (1) and (2) of Section 69 of the Partnership Act restrict the filing of the suit by any person as a partner of an unregistered firm, including by a claim under ‘other proceedings,’ the applicants could not seek the appointment of an arbitrator because the partnership deed in their case was unregistered.

Hon’ble Chief Justice of the Calcutta High Court, Shri Prakash Shrivastava, rooted his judgment on the Supreme Court decision in Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society Limited, (2016) 11 SCC 313 and the Madras High Court decision in M/s. Jayamurugan Granite Exports v. M/s. SQNY Granites, 2015 4 LW 385, both of which held that arbitral proceedings do not fall under the definition of “other proceedings” in Section 69(3) of the Partnership Act and that, under Section 11 of the Arbitration Act, the restrictions placed under Section 69 does not apply to arbitration proceedings or arbitral awards.

As a result, the Calcutta High Court ruled that the non-registration of the partnership firm would not trigger the bar under Section 69 of the Partnership Act in terms of beginning proceedings under Section 11 of the Arbitration Act.

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