Narainji Vishram Chhatbar Vs. Kiran Gajendra Mehta - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam].m.s. rane, j.1. a short but crucial and decisive point that arises for consideration in this matter is whether a partner can file a suit seeking reference to the arbitrator on the basis of partnership agreement which is unregistered.2. since, it is a point of law the matter is being disposed of without going into the merits or demerits of the rival contentions. 3. few relevant facts :it is the case of the plaintiff that by a deed of partnership dated 1st august, 1990 partnership between the plaintiff and the defendant came to be constituted. copy of the deed of partnership has been annexed as exh-a to the plaint. on perusal of the said deed of partnership, it is noticed that the partnership has not been given any name. according to the plaintiff, dispute arose with regard to the said partnership. it may be stated that the main dispute seems to be revolving over the premises where the partnership business was supposed to have been carried on. according to the plaintiff disputes have arisen between him and the other partner and therefore as provided in clause 15 partnership agreement the reference be made to the arbitrator for adjudication. on behalf of the defendant, however the suit is opposed at the stage of admission, inter-alia contending that the alleged partnership being not registered under section 69 of the indian partnership act the suit filed seeking reference to the arbitrator is not competent and maintainable. this is apart from the fact that the defendant has denied there being partnership as alleged. on the legal aspect, i heard both the learned advocates. mr. jain has referred to decisions, namely ;1. : air1968ap378 shri baba commercial syndicate & another v. channamsetti dasu and another. 2. : air1966bom111 , navinchandra jethabhai and another v. moolchand sadaram gindodiva, 3. : air1959cal660 , abdul razaak v. mashiruddin ahmed. 4. relying upon the above decisions, the learned advocate for the plaintiff contends that the suit, notwithstanding the partnership being unregistered is competent. whereas on behalf of the respondent the latest division bench judgment of our high court in appeal no. 296 of 1989 in arbitration petition no. 1455 of 1981 in the case of chandulal nathibhai shah v. champaklal ambalal parikh, reported in 1993, mah. l.j. page 1267 has been relied upon. 5. it may be stated that on going through the said judgment of our high court in chandulal's case (supra) it is noticed that the question which arose before the appellate court was exactly as obtained in the matter herein. the reference was sought to be made to the arbitrator by a partner in respect of partnership firm which was unregistered and our appellate court on consideration of the legal position on the point and in particular referring to the decision of the supreme court in the case of jagdish chandra gupta v. kajaria traders (india) ltd. a.i.r. 1964, s.c. 1832, held and concluded that the nature of dispute between the partners in respect of the unregistered partnership is one that squarely falls under the provisions of section 69(c) of the indian partnership act and therefore the suit filed seeking arbitration will be incompetent and therefore not maintainable. 6. the ratio in chandulal's case which is a later decision lays down the legal position luminously needing no further elaboration. i upheld the objection raised by and on behalf of the defendant about the maintainability of the suit. the ratio of the said judgment of our appellate court squarely applies to the facts and circumstances as obtained in the matter herein. 7. i, therefore, hold that the suit filed is not maintainable. suit is dismissed. however, there shall not be order as to costs.