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sm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5194 OF 2008
Sou.Shakuntala Vasant Agarwal & Ors. ...Petitioners.
Vs.
The Five Star Poultry Farm & Ors. ...Respondents.
Mr.S.S.Patwardhan for the Petitioners.
Mr.Nitesh Bhutekar i/by Mr.Uday Warunjikar for
Respondent Nos. 2 and 3.
ig CORAM : ANOOP V. MOHTA,J.
DATED : 17th March, 2009
P.C.:-
. Heard finally, by consent.
2. By the impugned order, the Ad-hoc District
Judge-1, Sangli has allowed the Appeal under Section
37 of the Arbitration and Conciliation Act-1996 (for
short, “the Act”) which was against an order passed by
the Civil Judge, Junior Division, Miraj in Regular
Civil Suit No. 303 of 2002 refusing to appoint an
Arbitrator in a dispute among the partners of the
partnership firm.
3. In the present case, an application for
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appointment of Arbitrator, was filed by the plaintiffs
themselves, though there was no such objection or
application, filed by the Defendants at appropriate
time and/ or at any point of time.
4. Whether such application, at the instance of
Plaintiffs, is maintainable or not is not the issue,
at this stage, I am considering the order dated
11.11.2005 whereby the said application was rejected
against that order. The Respondents thereafter
preferred an Appeal under Section 37 of the Act.
5. Section 37 of the Act nowhere contemplates such
appeal against the rejection of such application under
Section 8 of the Act. In absence of this, there was
no question of entertaining such appeal under Section
37 of the Act, as done in the present case. It
appears that, there was no such objection raised at
the relevant time but still without observing anything
on the merits of the matter, once it is clear that
there was no such provisions and such Appeal is not
maintainable, any order passed in such Appeal is
without jurisdiction. The remedy is elsewhere.
6. By the impugned order, the learned District
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Judge-1, Sangli has allowed the Appeal and set aside
the basic order on Exhibit 58 dated 11/11/2005 and
directed to appoint an Arbitrator. This in my view,
as rightly contended by the learned counsel appearing
for the Petitioners, is without jurisdiction in view
of above. Therefore, the impugned order dated 11th
March, 2008 is quashed and set aside. The order dated
11/11/2005 is restored. However, the Respondents are
at liberty to take appropriate steps or file
appropriate Petition / Application to challenge the
same, if so advice in the above background.
7. Resultantly, the Petition is allowed in terms of
prayer clause (a). No order as to costs.
(ANOOP V.MOHTA, J.)
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