# Shobhit Shah & Ors v. M/s Induratna Realtors L.L.P. & Ors

- **Citation:** (2022) 9 ILRA 773
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-04
- **Case number:** Matters Under Article 227 No. 3386 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shobhit-shah-ors-v-m-s-induratna-realtors-l-l-p-ors-49275
- **Pages:** 10

## Headnote

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section 8- Section 9 - Commercial Court
Act, 2015- Section 2 (1) (C) (XV) -
Quashing of plaint of Original Suit - To
determine whether the dispute is to be
referred to the arbitrator under clause
21 of the partnership deed, the first
question which needs to be determined
is whether the dispute among the
partners arises out of the partnership
deed. The said issue being an issue of
fact can be adjudicated by the trial court
only on the basis of evidence and
material on record, and this Court
cannot adjudicate the said issue under
its supervisory jurisdiction under Article
227 of the Constitution of India.

Settled law that disputed questions of fact
can only be adjudicated by the trial court by
leading evidence and the said exercise cannot
be
conducted
under
the
supervisory
jurisdiction of the High Court under Article
227 of the Constitution of India.

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section
9-
Section
11-Though
an
application under Section 9 of the Act,
1996 has been filed by respondent no.1
stating that there is an arbitration
clause in the partnership deed that does
not amount to estoppel or acquiescence
as
against
the
respondent
no.1
admitting that dispute falls within the
ambit of the arbitration clause, more so,
when no application under Section 11 of
the
Act,
1996
has
been
filed
for
appointment
of
the
arbitrator-said
application withdrawn and Original Suit
instituted -The question as to whether
the dispute falls within the ambit of the
arbitration
clause
is
yet
to
be
adjudicated
upon-As
the
aforesaid
question has not been determined and
no application under Section 11 of the
Act, 1996 was filed by respondent no.1,
whether pleading made in Section 9
application will amount to acquiescence
on the part of respondent no.1 cannot be
adjudicated upon at this stage in a
proceeding
under
Article
227
of
Constitution of India as it is an issue to
be adjudicated in trial on the basis of
evidence under which circumstances the
respondent no.1 preferred Section 9
application.

Mere filing of an application u/s 9 of the Act
1996 where no application u/s 11 of the Act
1996 has been filed cannot lead to the inference
of either estoppels or acquiescence against the
respondent and neither can the said question be
gone into by the High Court under its
supervisory jurisdiction under Article 227 of the
Constitution of India as it is an issue that can
only be decided in trial.

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section 9- Section 11the respondent no.1
did not file any application under Section
11 of the Act, 1996 for appointment of
Arbitrator and got the application under
Section 9 of the Act, 1996 withdrawn, and
774 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter, instituted Original Suit in
which he obtained a temporary injunction.
The
petitioners
have
a
remedy
of
contesting
the
temporary
injunction
application
and
get
the
injunction
vacated. At this stage, it is too early to
conclude that suit is liable to be dismissed
for the concealment of fact inasmuch as
before dismissing the suit on the ground
of concealment, the court has to ascertain
as to whether such concealment of fact
has any bearing on the outcome of the
suit, which can be determined only on the
basis of evidence and material on record
and not by this Court in the exercise of its
supervisory jurisdiction under Article 227
of the Constitution of India.

The issue of concealment of fact is a disputed
question of fact, which can be decided only by
the trial court and not under the supervisory
jurisdiction of the High Court under Article 227
of the Constitution of India. (20, 21, 23, 24, 25,
26, 27, 28, 29, 34)

Petition accordingly rejected. (E-3)

Case Law/ Judgements relied upon:-

## Text

9 All. Shobhit Shah & Ors. Vs. M/s Induratna Realtors L.L.P. & Ors.
773
shall
proceed
with
the
execution
proceedings
pending
before
it
in
accordance with law considering all the
objections as have been raised by the
authority before it.
----------
(2022) 9 ILRA 773
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 3386 of 2022
(CIVIL)

Shobhit Shah & Ors. ...Petitioners
Versus
M/s Induratna Realtors L.L.P. & Ors.
 ...Respondents

Counsel for the Petitioners:
Ms. Shreya Gupta

Counsel for the Respondents:

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section 8- Section 9 - Commercial Court
Act, 2015- Section 2 (1) (C) (XV) -
Quashing of plaint of Original Suit - To
determine whether the dispute is to be
referred to the arbitrator under clause
21 of the partnership deed, the first
question which needs to be determined
is whether the dispute among the
partners arises out of the partnership
deed. The said issue being an issue of
fact can be adjudicated by the trial court
only on the basis of evidence and
material on record, and this Court
cannot adjudicate the said issue under
its supervisory jurisdiction under Article
227 of the Constitution of India.

Settled law that disputed questions of fact
can only be adjudicated by the trial court by
leading evidence and the said exercise cannot
be
conducted
under
the
supervisory
jurisdiction of the High Court under Article
227 of the Constitution of India.

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section
9-
Section
11-Though
an
application under Section 9 of the Act,
1996 has been filed by respondent no.1
stating that there is an arbitration
clause in the partnership deed that does
not amount to estoppel or acquiescence
as
against
the
respondent
no.1
admitting that dispute falls within the
ambit of the arbitration clause, more so,
when no application under Section 11 of
the
Act,
1996
has
been
filed
for
appointment
of
the
arbitrator-said
application withdrawn and Original Suit
instituted -The question as to whether
the dispute falls within the ambit of the
arbitration
clause
is
yet
to
be
adjudicated
upon-As
the
aforesaid
question has not been determined and
no application under Section 11 of the
Act, 1996 was filed by respondent no.1,
whether pleading made in Section 9
application will amount to acquiescence
on the part of respondent no.1 cannot be
adjudicated upon at this stage in a
proceeding
under
Article
227
of
Constitution of India as it is an issue to
be adjudicated in trial on the basis of
evidence under which circumstances the
respondent no.1 preferred Section 9
application.

Mere filing of an application u/s 9 of the Act
1996 where no application u/s 11 of the Act
1996 has been filed cannot lead to the inference
of either estoppels or acquiescence against the
respondent and neither can the said question be
gone into by the High Court under its
supervisory jurisdiction under Article 227 of the
Constitution of India as it is an issue that can
only be decided in trial.

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section 9- Section 11the respondent no.1
did not file any application under Section
11 of the Act, 1996 for appointment of
Arbitrator and got the application under
Section 9 of the Act, 1996 withdrawn, and
774 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter, instituted Original Suit in
which he obtained a temporary injunction.
The
petitioners
have
a
remedy
of
contesting
the
temporary
injunction
application
and
get
the
injunction
vacated. At this stage, it is too early to
conclude that suit is liable to be dismissed
for the concealment of fact inasmuch as
before dismissing the suit on the ground
of concealment, the court has to ascertain
as to whether such concealment of fact
has any bearing on the outcome of the
suit, which can be determined only on the
basis of evidence and material on record
and not by this Court in the exercise of its
supervisory jurisdiction under Article 227
of the Constitution of India.

The issue of concealment of fact is a disputed
question of fact, which can be decided only by
the trial court and not under the supervisory
jurisdiction of the High Court under Article 227
of the Constitution of India. (20, 21, 23, 24, 25,
26, 27, 28, 29, 34)

Petition accordingly rejected. (E-3)

Case Law/ Judgements relied upon:-

1. Mohd. Shahid & anr. Vs St. of U.P. & ors.
2003 AWC 65249

2. Shrawan Kumar @ Pappu Vs Nirmala ,Writ-C
No.62174 of 2012

3. Prem Shanker Tripathi Vs 1st A.D.J., Alld.&
ors. 1986 ALL. L.J. 1200

4. Gulab Chand Vs Munsif West Alld. & ors. ARC
1988 (1)

5. Smt. Tajwar Jahan & anr. Vs Munsif North,
Lucknow, & anr. 1994 ALR 24 528

6. S.J.S. Business Enterprises (P) Ltd. Vs St. of
Bih. & ors. 2004 (7) SCC 166

7. Arunima Baruah Vs U.O.I & ors. 2007 (6) SCC 120

8.
Virudhunagar
Hindu
Nadargal
Dharma
Paribalana Sabai & Ors Vs Tuticorin Edu. Society
& ors. 2019 (9) SCC 538
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Ms. Shreya Gupta, learned
counsel for petitioners.

2. The petitioners through the present
petition
under
Article
227
of
the
Constitution of India have prayed for
quashing of plaint of Original Suit No.557
of 2022.

3. The facts, in brief, are that plaintiffrespondent no.1 (for convenience referred
to as 'respondent no.1') instituted a suit
bearing Original Suit No.557 of 2022
against the petitioners, who are defendant
nos.2, 3, 4 & 7 in suit (for convenience
referred to as 'petitioners') stating therein
that a registered partnership agreement was
entered into between the respondent no.1,
petitioners and respondent nos.2 to 4, who
are defendant nos.1, 5 & 6 in the suit, (for
convenience referred to as 'respondent
nos.2
to
4).
Under
the
partnership
agreement, petitioners shall transfer the
ownership of suit property to respondent
no.1, and the respondent no.1 shall bear all
expenses in developing the suit property.
The details of the suit property have been
stated at the foot of the plaint. Under the
partnership agreement, multistory building,
residential complex, commercial complex,
multiplex complex, hotel/motel apartment
club,
etc.
will
be
constructed
and
respondent no.1 was given possession of
the suit property.

4. The further averments in the plaint
is that respondent no.1 incurred a huge
amount in developing the suit property and
started construction on 21.04.2022. The
petitioners with some unscrupulous persons
came to the suit property and started
threatening respondent no.1 and made an
attempt to dispossess respondent no.1 from
9 All. Shobhit Shah & Ors. Vs. M/s Induratna Realtors L.L.P. & Ors.
775
the suit property. It is further stated that the
cause of action for the institution of suit
arose on 21.04.2022 when respondent no.1
came to know that the petitioners want to
sell the suit property to some other person
at a higher price. In the aforesaid backdrop,
the following relief has been prayed for in
the suit:-

12- यह सक वादी सनम्नसलस्खत दादरसी के
सलये सनवेदन करता हैः-

क- यह सक बिररये हुकुम इम्तनाई दवामी
दवाम के सलये प्रसतवादीगण को मुमासनयत सकया िावे
सक प्रसतवादीगण सकसी दीगर सख्स को सकसी प्रकार का
कोई भी अन्तरण व हिान्तरण, सट्टा या बैनामा या
सकसी भी प्रकार का Assign Agreement प्रश्नगत
िायदाद सिसका सववरण वादपत्र के अन्त में मय नक्शा
निरी व चौहद्दी के सदया गया है, का न करें तिा वादी के
स्वासमत्व की भी भूसम पर वादी के शास्न्त पूणष अध्यासन
में कोई अवरोध पैदा न करें तिा उसके उपयोग उपभोग
व सनमाषण कायष िो चल रहा है उसको न रोके तिा सकसी
तरह की कोई मुिासहमत पैदा न करे।

ख- यह सक कुल खचाष मुकदमा बहक वादी
स्खलाफ प्रसतवादीगण आयद फरमाया िाय।

ग-
यह
सक
अलावा
ख्वाह
बिाय
मुतसिकरह सदर वदासनश्त राय अदालत वादी और भी
सिस सकसी दादरसी को पाने का मुश्तहक करार पावे
उसकी भी सिग्री बहक वादी स्खलाफ प्रसतवादीगण
आयद फरमाया िावे।"

5. The description of the suit property as
stated at the foot of the plaint is as follows:-

"मकान नम्बर एस० 8/106 िो आरािी
नम्बर 140/1 रकबा 1.2790 हे० आरािी नं० 141 रकबा
0.3360 हे०, 113/2 रकबा 0.0260 हे०, 117 रकबा
0.3200 हे०, 118/1 रकबा 0.1250 हे०, 143 रकबा
0.3000 हे०, 144 रकबा 0.0120 हे०, 145 रकबा 0.0040
हे०, 146 रकबा 0.0280 हे०, 147 रकबा 0.0040 हे०,
148/1 रकबा 0.0040 हे०, 142 रकबा 0.3360 हे०, 148/2
रकबा 0.320 हे०, 149 रकबा 0.2020 हे०, 150 रकबा
0.4410 हे०, 151 रकबा 0.0200 हे० 153 रकबा 0.0530
हे० पर बना है वाका मुहल्ला खिुरी, वािष ससकरौल,
शहर वाराणसी सिसको नक्शा मुन्ससलका दाव हािा मे
बकैद पैमाईश िासहर सकया गया है हसब चौहद्दी िैल-

पूरब- आरािी नम्बर-154 व अन्य

पसिम- िमीन रािकृष्ण दास आरािी
नम्बर 116 व अन्य उत्तर-प्राइवेर्ट रािा बादहं मकबूल
आलम रोि (मुख्य मागष)

दसक्षणः- आरािी नम्बर 120, 121, 122 व
अन्य व मकान नं० एस 8/106ए।"

6. Learned counsel for the petitioners
has urged that under clause 21 of the
partnership deed, any dispute between
partners of the firm shall be referred to an
arbitrator who has jurisdiction to decide the
dispute. It is further contended that the suit
filed by respondent no.1 is sham illusory
and inspired by nefarious and vexatious
design to harass the petitioners which are
established from the record and in such
view of the fact, this Court under Article
227 of the Constitution of India has
jurisdiction to interfere in the matter and
quash the plaint.

7. To buttress the said submission,
learned counsel for the petitioners further
urged that the fact that dispute between
partners is to be referred to the arbitrator is
admitted by respondent no.1 which is
evident from the record of the case
instituted by respondent no.1 under Section
9 of the Arbitration and Conciliation Act,
1996 and Section 2 (1) (C) (XV) of
Commercial Court Act, 2015. Accordingly,
it is contended that when it is admitted by
respondent no.1 that the forum to resolve
the dispute between the partners is the
arbitration
under
clause
21
of
the
partnership deed, the suit is barred under
Section
8
of
the
Arbitration
and
Conciliation Act, 1996 (hereinafter referred
to as 'Act, 1996'). Accordingly, it is
contended that it is a fit case where this
Court should exercise its power under
776 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 227 of the Constitution of India to
quash the plaint.

8. Now in view of the submission
advanced by the learned counsel for the
petitioners, the moot question which arises
for consideration is as to whether the
present case falls within the periphery of
one of such cases where this Court should
exercise its power under Article 227 of the
Constitution of India to quash the plaint or
as the alternative remedy is available to the
petitioners in the form of application under
Order 7 Rule 11 of C.P.C., they may be
relegated to the same.

9. I have considered submissions of
counsel for the petitioners and perused the
record.

10. The submission advanced by
learned counsel for the petitioners is solely
based upon application under Section 9 of
the Act, 1996 read with Section 2 (1)
(C)(XV) of Commercial Court Act, 2015
filed by respondent no.1 registered as Misc.
Civil Case No. 113 of 2022. The petitioners
have placed reliance upon paragraphs 2, 9
to 11 and prayer made by respondent no.1
in para 15 of the application. Para 2, 9 to
11, and 15 of Section 9 application are
reproduced herein below:

"2.यह है सक सवपक्षीगण की िमीन
मुहल्ला खिुरी, वािष ससकरौल, शहर वाराणसी सिस
पर मकान नम्बर एस० 8/106 नगर सनगम वाराणसी
िारा पड़ा है िो प्रािषनापत्र के साि (संलग्नक-4) है,
तिा िो आरािी नम्बर 141 रकबा 0.3360 हे०,
113/2 रकबा 0.026 हे०, 117 रकबा 0.320 हे०,
118/1 रकबा 0.125 हे०, 143 रकबा 0.300 हे०, 144
रकबा 0.012 हे०, 145 रकबा 0.004 हे०, 146 रकबा
0.028 हे०, 147 रकबा 0.004 है, 148/1 रकबा 0.004
हे०, 142 रकबा 0.336 हे०, 148/2 रकबा 0.032 हे०,
149 रकबा 0.202, 150 रकबा 0.441 हे०, 151 रकबा
0.020 हे०, 153 रकबा 0.053 हे० पर कायम है
प्रािषनापत्र के साि खतौनी (संलग्नक-3) है। और
सवपक्षीगण ने िररये पार्टषनरसशप सवलेख सदनांक
31.03.2015 को प्रािी के फमष मेससष ईन्दू रत्ना
ररयलर्टसष
एल.एल.पी.
के
साि
पार्टषनसशप
इकरारनामा तहरीर करके रुबरू गवाहान सनष्पासदत
कर सदया। पार्टषनरसशप इकरारनामा इस पािषनापत्र
के साि (संलग्नक-2) है तिा बादह फमष सनबंधक
रसिस्टरार उ०प्र० के कायाषलय वाराणसी में संख्या
820/7-3-15105 को सदनांक 21.05.2015 को फमष
सनबंधक उ०प्र० वाराणसी िारा पार्टषनरसशप िीि को
सनबंसधत कर सदया गया। रसिस्टरेशन इस प्रािषनापत्र
के साि (संलग्नक-1) है। तिा मेससष ईन्दू रत्ना
ररयलर्टसष एल.एल.पी. (संलग्नक-5) व मुद्दालेहुम के
मध्य पार्टषनरसशप िीि सनबंसधत वाराणसी में हुआ
उसके अनुसार प्रािी को सवकससत करने का सम्पूणष
खचष वहन करना होगा तिा सवपक्षीगण प्रश्नगत
आरासियात व मकान नम्बर की िमीन को पार्टषनर
सशप िीि के अनुसार ईन्दू रत्ना रेससिेस्न्सयल्स को
बतौर मासलकाना हक प्रदान कर सदये। यानी प्रश्नगत
िायदाद के बावत ईन्दूरत्ना रेसीिेस्न्सयल्स हर फेल
मासलकाना हक अमल मे लाते रहेगे।

9. यह सक सदनांक 04.03.2022 को प्रािी
ने सवपक्षीगण से अनुरोध सकया सक पार्टषनरसशप िीि
सदनांसकत 31.03.2015 के पैरा 21 के अनुपालन में
मध्यथि सनयुक्त कर एक सप्ताह के भीतर अवगत
करावे तासक सववाद का सनिारण मध्यथिम िारा
सकया िा सके।

10. यह सक प्रािी, सवपक्षीगण की सूचना
का इन्तिार करता रहा परन्तु उक्त अवसध व्यतीत हो
िाने के बाद तिा उसके बाद भी दस सदन बीत िाने
के बाद सवपक्षीगण आसवषर्टरेशन क्लाि पैरा 21 के
अनुपालन मे मध्यथिम सनयुक्त सकये िाने मे कोई
असभरुसच नही सदखाई और न ही इस सम्बन्ध में कोई
सूचना ही प्रेसर्त की गई।

11. यह सक प्रािी ने प्रश्नगत िायदाद
सिसका सववरण नीचे सदया गया है, के संबंध मे कोई
अन्य वाद सकसी अन्य न्यायालय मे दास्खल नही सकया
है न ही वह मौिूदा समय मे सवचाराधीन है। प्रािी का
सववासदत िायदाद के संबंध मे यह पहला वाद है।

15. यह सक प्रािी सनम्नसलस्खत दादरसी के
सलये सनवेदन करता हैः-
9 All. Shobhit Shah & Ors. Vs. M/s Induratna Realtors L.L.P. & Ors.
777

क- यह सक बिररये हुकुम इम्तनाई
दवामी दवाम के सलये सवपक्षीगण को मुमासनयत
सकया िावे सक दौरान मुकदमा सवपक्षीगण सकसी
दीगर सख्स को सकसी प्रकार का अन्तरण व
हिान्तरण सट्टा या बैनामा प्रश्नगत िायदाद का
सिसका सववरण प्रािषनापत्र के अन्त में मय नक्शा
निरी व चौहद्दी के सदया गया है, का न करे तिा प्रािी
के स्वासमत्व की भूसम पर प्रािी के शास्न्त पूणष
अध्यासन मे कोई अवरोध पैदा न करें तिा उसके
उपयोग उपभोग व सनमाषण कायष िो चल रहा है
उसको न रोके तिा सकसी तरह की कोई मुिासहमत
पैदा न करे।

ख- यह सक कुल खचाष मुकदमा वहक
प्रािी स्खलाफ सवपक्षीगण आयद फरमाया िाय।

ग- यह सक अलावा ख्वाह विाय
मुतसिकरह सदर वदासनश्त राय अदालत प्रािी और
भी सिस सकसी दादरसी को पाने का मुश्तहक करार
पावे उसको भी वहक प्रािी स्खलाफ सवपक्षीगण
आयद फरमाया िावे।"

11. Placing reliance upon para 9, 10 to
11 of Section 9 application, extracted above,
it is contended that the averments contained
in the aforesaid paragraphs of Section 9
application discloses that respondent no.1 has
admitted that any dispute among the partners
shall be referred to the arbitrator, and once
admission has been made by respondent no.1
in Section 9 application, it is crystal clear that
suit is barred by Section 8 of the Act, 1996
and jurisdiction of the civil court is ousted,
hence, the suit is nothing but an abuse of the
process of the court and deserves to be
quashed by this Court under Article 227 of
the Constitution of India.

12. Before proceeding to consider the
contention of the petitioners' counsel, it
would be fruitful to analyse the judgement
relied upon by the learned counsel for the
petitioners.

13. In the case of Mohd. Shahid and
Another Vs. State of U.P. and Others 2003
AWC 65249, a landlord filed suit under
Section 21(1)(b) of the U.P. Act No.13 of
1972 for eviction of the tenant. The
application of the landlord was allowed and
the matter travelled up to High Court where
the order passed by the court below for
eviction was affirmed and no special leave
petition was preferred against the order
passed by the High Court, yet the tenant,
who
was
District
Election
Officer,
instituted a suit against the landlord in
which temporary injunction application
was rejected, but in the appeal, the
injunction was granted. In such view of the
fact, the writ petition was filed praying for
quashing of the order of the appellate court
granting the temporary injunction and
quashing the plaint.

14. This Court after analyzing the fact
in the said case found that it is a fit case
where the institution of the suit by the
tenant is nothing but an abuse of the
process of the court inasmuch as the decree
of the eviction against the tenant-District
Election Officer had attained finality till
High Court and as the rights of the parties
have already been determined, the tenant
had no option but to vacate the premises in
question and the institution of the suit by
the tenant is nothing but an abuse of the
process of the court which can very well be
corrected by this Court in the exercise of
power under Article 227 of Constitution of
India by quashing the plaint and the
technical objection raised by the Standing
Counsel
regarding
alternative
remedy
available to the landlord under Order 7
Rule 11 of C.P.C. was overruled.

15. In the case of Shrawan Kumar @
Pappu Vs. Nirmala passed in Writ-C
No.62174 of 2012, this Court quashed the
plaint as the prayer in the suit was to
restrain the respondent from marrying any
778 INDIAN LAW REPORTS ALLAHABAD SERIES
other person except the petitioner. This
Court found that the prayer in the suit was
against public policy and as such, it is
impliedly barred by Section 9 of C.P.C. In
returning the said finding, this Court
noticed Section 26 of the Indian Contract
Act,
1872
which
provides
that
an
agreement to restrain a marriage of any
person is void. It was in such peculiar facts,
that this Court quashed the plaint suo moto.

16. In the case of Prem Shanker
Tripathi Vs. 1st Additional District Judge,
Allahabad and Others 1986 ALL. L.J.
1200 this Court quashed the plaint of
Original Suit No.139 of 1977 pending in
the court of Munsif (West) Allahabad on
the ground that controversy in the suit has
already been settled by this Court in Writ
Petition No.852A of 1976 and Writ Petition
No.302 of 1976. In such view of the fact,
this Court found that the filing of the suit
was a frivolous and vexatious act. The
Court further noticed that by filing the suit
an effort had been made to get over the
order passed by this Court in the writ
petition. Accordingly, this Court held that
suit is impliedly barred within the meaning
of Section 9 of C.P.C.

17. In the case of Gulab Chand Vs.
Munsif West Allahabad and Others ARC
1988 (1) this Court quashed the plaint of
Original Suit No.102 of 1987 instituted by
one Meera Dutta. The facts in that case was
that the petitioner-landlord instituted a suit
for eviction in the court of Judge Small
Causes Court, Allahabad being Suit No.50
of 1981 against O.P. No.3 to 5 for their
ejectment from the disputed house. The
said suit was decreed and O.P. Nos. 3 to 5
were directed to vacate the disputed house
within a month. The decree of eviction was
challenged by the tenants O.P. Nos.3 to 5 in
revision before the District Judge, who
dismissed the revision and affirmed the
decree of eviction. Thereafter, O.P. Nos.3
to 5 preferred Writ Petition No.4419 of
1983 before this Court which was also
dismissed. The O.P. Nos.3 to 5 when
unable to save their eviction, adopted a
device to institute a suit by their sister Smt.
Meera Dutta (O.P. No.2 in the revision) on
the ground that she was also one of the cotenant of the disputed house and she was
not put to notice before passing the eviction
decree and thus, the eviction decree is
collusive. This Court found that institution
of the suit by O.P. No.2 Smt. Meera Dutta
is nothing but an abuse of the process of the
court inasmuch as it is impossible to
believe in view of the averment made in the
plaint that she had been residing at the
disputed house throughout, yet she could
not know about the eviction suit instituted
against O.P. Nos.3 to 5. The Court found
that it is established that the litigation is
sham, illusory, collusive, and inspired by
nefarious and vexatious design, therefore,
this Court quashed the plaint.

18. Similarly, in the case of Smt.
Tajwar Jahan and Another Vs. Munsif
North, Lucknow, and Another 1994 ALR
24 528 this Court quashed the plaint in a
case where rights of the parties have been
adjudicated and have attained finality up to
Apex Court.

19. In all five judgements relied upon
by the learned counsel for the petitioners, it
is pertinent to note that rights among the
parties
have
been
determined
by
a
competent court, and to scuttle the
execution of the decree, fresh suits have
been instituted and in such view of the fact,
this Court has held that when the rights
among the parties have been determined,
the propriety demands that the order or
decree determining the rights of the parties
9 All. Shobhit Shah & Ors. Vs. M/s Induratna Realtors L.L.P. & Ors.
779
which have attained finality must be
complied with or adhered to. In such
circumstances, this Court held that where it
is established on record that the suit is
sham, illusory, collusive, and inspired by
nefarious and vexatious design, the Courts
not only have jurisdiction but owe a duty to
throttle such litigation at the threshold.

20. Now at this juncture, it is
pertinent to note that though respondent
no.1 has filed an application under Section
9 of the Act, 1996 and has stated in para 9,
10, and 11 of the application that clause 21
provides for settlement of dispute among
the partners by the arbitrator. Such
averment in Section 9 application, for the
reasons stated hereinafter, does not amount
to an admission by respondent no.1 that the
dispute raised in the suit by the respondent
no.1 falls within clause 21 of the
partnership deed and such dispute can be
resolved only through an arbitrator.

21. To determine whether the dispute
is to be referred to the arbitrator under
clause 21 of the partnership deed, the first
question which needs to be determined is
whether the dispute among the partners
arises out of the partnership deed. The said
issue being an issue of fact can be
adjudicated by the trial court only on the
basis of evidence and material on record,
and this Court cannot adjudicate the said
issue under its supervisory jurisdiction
under Article 227 of the Constitution of
India.

22. The matter can be viewed from
another angle, that application under
Section 9 of the Act, 1996 is an application
only for grant of temporary injunction on
the existence of any condition enumerated
in Section 9 of the Act, 1996, but
application filed under Section 11 of the
Act, 1996 is the application for referring
the matter to the arbitrator under the
scheme of the Act, 1996, and power to
appoint an arbitrator is conferred upon the
High Court in case parties could not
appoint the arbitrator under the mode
provided in the agreement.

23. In the instant case, there is
nothing on record to indicate that any
application under Section 11 of the Act,
1996 was filed by respondent no.1 for the
appointment of an arbitrator on the ground
that the dispute among the partners falls
within the ambit of the arbitration clause,
and the arbitrator may be appointed to
resolve the dispute.

24. In such view of the fact, this Court
finds that though an application under
Section 9 of the Act, 1996 has been filed by
respondent no.1 stating that there is an
arbitration clause in the partnership deed
that does not amount to estoppel or
acquiescence as against the respondent no.1
admitting that dispute falls within the ambit
of the arbitration clause, more so, when no
application under Section 11 of the Act,
1996 has been filed for appointment of the
arbitrator.

25. Though respondent no.1 has filed
an application under Section 9 of the Act,
1996 stating that clause 21 of the
partnership deed provides for arbitration
agreement among the parties, but he got the
said application withdrawn and instituted
Original Suit No.557 of 2022 for the relief,
extracted above.

26. The question as to whether the
dispute falls within the ambit of the
arbitration clause is yet to be adjudicated
upon. It is relevant to notice that
respondent no.1 has not approached the
780 INDIAN LAW REPORTS ALLAHABAD SERIES
proper forum under Section 11 of the Act,
1996 for the appointment of Arbitrator.

27. As the aforesaid question has not
been determined and no application under
Section 11 of the Act, 1996 was filed by
respondent no.1, whether pleading made in
Section 9 application will amount to
acquiescence on the part of respondent no.1
cannot be adjudicated upon at this stage in
a
proceeding
under
Article
227
of
Constitution of India as it is an issue to be
adjudicated in trial on the basis of evidence
under which circumstances the respondent
no.1 preferred Section 9 application,
therefore, in the opinion of the Court, the
submission of learned counsel for the
petitioners does not stand to merit.

28. It is also contended that the
institution of suit is a nefarious and
vexatious act on the part of respondent no.1
which is evident from the fact that when
respondent no.1 failed to get an order under
Section 9 of the Act, 1996, he instituted
Original Suit No.557 of 2022 and obtained
an interim injunction order. It may be that
respondent no.1 could not succeed in
obtaining an injunction order under Section
9 application, but that does not mean that
suit instituted by respondent no.1 is
frivolous and amounts to abuse of the
process of the court as the institution of
Section 9 application by the respondent
no.1 may be on some wrong legal advice,
but fact remains that the respondent no.1
did not file any application under Section
11 of the Act, 1996 for appointment of
Arbitrator and got the application under
Section 9 of the Act, 1996 withdrawn, and
thereafter, instituted Original Suit No.557
of 2022 in which he obtained a temporary
injunction. The petitioners have a remedy
of contesting the temporary injunction
application and get the injunction vacated.

29. It is also contended that the suit
has been instituted by concealing the
material fact that respondent no.1 has filed
an application under Section 9 of the Act,
1996 before the Commercial Court Act
wherein he admitted in para 21 that the
dispute falls within the ambit of arbitration
clause of the partnership agreement, that
may be so, but at this stage, it is too early to
conclude that suit is liable to be dismissed
for the concealment of fact inasmuch as
before dismissing the suit on the ground of
concealment, the court has to ascertain as
to whether such concealment of fact has
any bearing on the outcome of the suit,
which can be determined only on the basis
of evidence and material on record and not
by this Court in the exercise of its
supervisory jurisdiction under Article 227
of the Constitution of India.

30. In the case of S.J.S. Business
Enterprises (P) Ltd. Vs. State of Bihar and
Others 2004 (7) SCC 166, the Apex has
held that the suppression of the material
fact disentitles the litigant to any relief, but
suppression must be of a material fact
which has bearing on the outcome of the
decision of the case. Relevant paragraph 13
of the judgment is reproduced herein
below:-

"13.
As
a
general
rule,
suppression of a material fact by a litigant
disqualifies such litigant from obtaining
any relief. This rule has been evolved out of
the need of the courts to deter a litigant
from abusing the process of court by
deceiving it. But the suppressed fact must
be a material one in the sense that had it
not been suppressed it would have had an
effect on the merits of the case. It must be a
matter
which
was
material
for
the
consideration of the court, whatever view
the court may have taken. Thus when the
9 All. Shobhit Shah & Ors. Vs. M/s Induratna Realtors L.L.P. & Ors.
781
liability to income tax was questioned by an
applicant on the ground of her non-
residence, the fact that she had purchased
and was maintaining a house in the country
was held to be a material fact, the
suppression of which disentitled her from
the relief claimed. Again when in earlier
proceedings
before
this
Court,
the
appellant had undertaken that it would not
carry on the manufacture of liquor at its
distillery and the proceedings before this
Court were concluded on that basis, a
subsequent writ petition for renewal of the
licence to manufacture liquor at the same
distillery before the High Court was held to
have been initiated for oblique and ulterior
purposes and the interim order passed by
the High Court in such subsequent
application was set aside by this Court.
Similarly, a challenge to an order fixing the
price was rejected because the petitioners
had suppressed the fact that an agreement
had been entered into between the
petitioners and the Government relating to
the fixation of price and that the impugned
order had been replaced by another order."

31. Similar view has been reiterated
by the Apex Court in the case of Arunima
Baruah Vs. Union of India & Others 2007
(6) SCC 120. Relevant paragraphs 11 & 12
of the judgment are reproduced herein-
below:-

11. The court's jurisdiction to
determine the lis between the parties,
therefore, may be viewed from the human
rights concept of access to justice. The
same, however, would not mean that the
court will have no jurisdiction to deny
equitable relief when the complainant does
not approach the court with a pair of clean
hands; but to what extent such relief should
be denied is the question.

12. It is trite law that so as to
enable the court to refuse to exercise its
discretionary
jurisdiction
suppression
must be of material fact. What would be a
material fact, suppression whereof would
disentitle the appellant to obtain a
discretionary relief, would depend upon
the facts and circumstances of each case.
Material fact would mean material for the
purpose of determination of the lis, the
logical corollary whereof would be that
whether the same was material for grant
or denial of the relief. If the fact
suppressed
is
not
material
for
determination of the lis between the
parties, the court may not refuse to
exercise its discretionary jurisdiction. It is
also trite that a person invoking the
discretionary jurisdiction of the court
cannot be allowed to approach it with a
pair of dirty hands. But even if the said
dirt is removed and the hands become
clean, whether the relief would still be
denied is the question."

32. Therefore, in the opinion of the
Court, the said contention also does not
stand to merit.

33. Indeed, the alternative remedy is
not always a bar in entertaining a petition
under Article 227 of the Constitution of
India, but the Apex Court in paragraphs 11
to 13 of the judgement in the case of
Virudhunagar Hindu Nadargal Dharma
Paribalana
Sabai
and
Others
Vs.
Tuticorin Educational Society and Others
2019 (9) SCC 538 has held that the Court
should refrain from interfering under
Article 227 of Constitution of India where
there is an alternate remedy provided under
the scheme of the act. Paragraphs 11 to 13
of the said judgement are being reproduced
herein below:-
782 INDIAN LAW REPORTS ALLAHABAD SERIES

"11. Secondly, the High Court
ought to have seen that when a remedy of
appeal under Section 104 (1)(i) read with
Order 43, Rule 1 (r) of the Code of Civil
Procedure, 1908, was directly available,
Respondents 1 and 2 ought to have taken
recourse to the same. It is true that the
availability of a remedy of appeal may not
always be a bar for the exercise of
supervisory jurisdiction of the High Court. In
A. Venkatasubbiah Naidu Vs. S. Chellappan
2000 (7) SCC 695, this Court held that
"though no hurdle can be put against the
exercise of the constitutional powers of the
High Court, it is a well-recognised principle
which gained judicial recognition that the
High Court should direct the party to avail
himself of such remedies before he resorts to
a Constitutional remedy"

12. But courts should always bear in
mind a distinction between (i) cases where such
alternative remedy is available before civil
courts in terms of the provisions of Code of
Civil Procedure, and (ii) cases where such
alternative remedy is available under special
enactments and/or statutory rules and the fora
provided therein happen to be quasi-judicial
authorities and tribunals. In respect of cases
falling under the first category, which may
involve suits and other proceedings before civil
courts, the availability of an appellate remedy
in terms of the provisions of CPC, may have to
be construed as a near total bar. Otherwise,
there is a danger that someone may challenge
in a revision under Article 227, even a decree
passed in a suit, on the same grounds on which
the Respondents 1 and 2 invoked the
jurisdiction of the High Court. This is why, a 3member Bench of this Court, while overruling
the decision in Surya Dev Rai vs. Ram Chander
Rai 2003 (6) SCC 675, pointed out in Radhey
Shyam Vs. Chhabi Nath 2015 (5) SCC 423 that
"orders of civil court stand on different footing
from the orders of authorities or tribunals or
courts other than judicial/civil courts".

13.
Therefore
wherever
the
proceedings are under the Code of Civil
Procedure and the forum is the civil court,
the availability of a remedy under the CPC,
will deter the High Court, not merely as a
measure of self imposed restriction, but as a
matter of discipline and prudence, from
exercising its power of superintendence
under the Constitution. Hence, the High
Court ought not to have entertained the
revision under Article 227 especially in a
case where a specific remedy of appeal is
provided under the Code of Civil Procedure
itself."

34. In such view of the fact, as the
petitioners have the remedy of filing
application under Order 7 Rule 11 of C.P.C.
for rejection of plaint if the suit is barred by
any provision of law, this Court finds that this
is not a fit case where this Court should
exercise its power under Article 227 of
Constitution of India to quash the plaint.

35. Thus, for the reasons given above,
the writ petition under Article 227 of the
Constitution of India lacks merit and is
accordingly, dismissed with no order as to
costs.
----------
(2022) 9 ILRA 782
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 5135 of 2016
(Civil)

Ghaziabad Development Authority
 ...Petitioner
Versus
District Judge/Appellate Authority, Civil
Court, Ghaziabad & Anr. ...Respondents