1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE DR. JUSTICE K.MANMADHA RAO WRIT PETITION NO.13935 OF 2021 (GM-CPC) BETWEEN: SRI JANARDHANA SUVARNA S/O DINAKARA MENDON, RESIDING AT “PRIYA NILAYA” MATTU VILLAGE, KATAPADI POST, UDUPI TALUK-576 105. ...PETITIONER (BY SRI. H.D.SOMESHA, ADVOCATE FOR SRI. RAJARAMA S., ADVOCATE) AND: 1. SMT. RATHNAVATHI L RAO AGED ABOUT 63 YEARS, W/O SRI LAXMANA RAO, RESIDING AT D.NO.MT-4/17, MATTU VILLAGE, KATAPADI POST, UDUPI TALUK-576 105. 2. M/S. VISHWESHWARI (BOAT), MATTU VILLAGE, KATAPADI POST, UDUPI TALUK-576 105. A PARTNERSHIP FIRM REPRESENTED BY ITS PARTNERS. 3. SRI PRAVEEN S/O SRI KRISHNAPPA KANCHAN, RESIDING AT KIDIYOOR, KADEKAR, UDUPI TALUK AND DISTRICT-576 101. …RESPONDENTS (NOTICE SERVED TO R-1, R-2, R-3 AND UNREPRESENTED) ® 2 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, 1908, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER AND SET ASIDE THE ORDER DATED 19-10-2020 PASSED IN O.S.NO.233/2016 BY THE COURT OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI, ON I.A.NO.X AS PER ANNEXURE-‘G’ AND ALLOW IA NO.X OR PASS OTHER SUITABLE ORDERS AS DEEMED FIT BY THIS HON’BLE COURT BY ALLOWING THIS PETITION IN THE INTEREST OF JUSTICE. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.08.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, DR. K.MANMADHA RAO, J., PRONOUNCED THE FOLLOWING: CAV ORDER (PER: HON'BLE DR. JUSTICE K.MANMADHA RAO) This Writ Petition has been filed seeking to set aside the Order dated 19.10.2020 passed in O.S.No.233/2016 on the file of IV Additional Civil Judge and JMFC, Udupi on I.A.No.10 and allow the same. 2. The petitioner herein is the Defendant No.2 and Respondents No.1, 2 and 3 were Plaintiff, Defendant No.1 and Defendant No.3 respectively before the Trial Court. 3. The Brief facts of the case are as follows: 3 The Respondent No.1 has filed a suit O.S.No.233/2016 before the Court of the II Additional Civil Judge at Udupi against the petitioner and the Respondents No.2 and 3 seeking relief to dissolve the 1st Defendant’s partnership business and to direct the Respondents No.2 and 3 to render account of the firm with effect from 22.11.2012 and to distribute the profits of the firm according to the right of the parties. The plaintiff and defendants entered into partnership deed dated 22.11.2012 in respect of a boat “Vishweshwari”, first defendant, bearing registration No. IND-KA-02-MM-341-27-03- 2012 and in respect of fishing Registration No.91 KA-02-TF-0121 Malpe, Udupi. The plaintiff and defendants have availed loan from M/s Mahalakshmi Co-operative Bank and M/s. Karnataka State Financial Corporation amounting to 18,00,000/-. Though there were profits, the same were not shown and accounts were not properly maintained and though everyone has equal rights, defendants have not given any share of profits to the plaintiff. This being the case, the plaintiff was not interested to continue as a partner in the firm and thereby issued the legal notice to the defendants. Despite the notice, the defendants kept silent. However, the plaintiff has again requested the defendants but 4 they were dismissive of the same. Thereafter again a legal notice was served dated 22.09.2015. Having, no option left, a suit was filed to dissolve the partnership. On service of summons, the defendant No.2 has appeared and filed an I.A.No.8 under Section 8 of Arbitration and Conciliation Act, 1996 and averred that there is Arbitration Clause in the partnership deed and civil Court has no jurisdiction to refer the matter for arbitration. The trial Court has framed the issues and plaintiff led the evidence and got the Partnership deed marked as an exhibit. Then the petitioner filed I.A.No.10 under Section 151 Order 17 Rule 1 (1)(a) of CPC read with Code of Civil Procedure read with Section 8 of Arbitration and Conciliation Act seeking for an order reviewing the order dated 22.01.2018 passed in I.A.No.8. 4. The Trial Court having heard both the sides dismissed the said application. Aggrieved by the same, the petitioner has approached this Court praying for the following reliefs: Issue a writ of certiorari or any other appropriate writ or order and set aside the order dated 19-10-2020 passed in O.S.No.233/2016 by the court of the IV Additional Civil Judge and JMFC, Udupi, on I.A.No.X as 5 per Annexure-‘G’ and allow IA No.X or pass other suitable orders as deemed fit by this Hon’ble Court by allowing this petition in the interest of justice. 5. Despite the service, Respondents remained unrepresented. 6. Heard learned counsel for the Petitioner. 7. The learned counsel for the petitioner would contend that even if the clause permits parties to approach arbitration, court shall refer the parties to arbitration and therefore, trial court ought to have referred parties to the arbitration. It was further contended that the partnership deed was with plaintiff and Trial Court ought to have directed the plaintiff to produce the original partnership deed. 8. It was also contended that the trial Court has failed to note Section 8 of Arbitration and Conciliation Act and therefore, the order of the Trial Court is arbitrary. Section 8 Clause II of the Arbitration and Conciliation Act reads thus: “The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or duly certified copy thereof.” 6 9. After hearing the learned counsel for the petitioner and on perusal of the records, it is observed from the order dated 19.10.2020 passed in O.S.No.233/2016 on the file of IV Additional Civil Judge and JMFC, Udupi, i.e., in I.A.No.8, clause 12 in the Partnership deed (dated 22.11.2012) made it clear that, if a partner wishes to retire, they must give written notice to the other partners. The other partners must return the retiring partner’s investment. If not, the retiring partner can approach the Court for legal action. The Court further clarified that the clause also mentions that disputes over the business can be referred to arbitration by mutual consent of the partners. 10. Further, the trial Court relied on the Supreme Court precedent in N. Radhakrishnan v. Maestro Engineers reported in (2010) 1 SCC 72, wherein it was held that if the original arbitration agreement is not filed in compliance with Section 8(2) of the Arbitration Act, the court cannot refer the matter to arbitration, even if there is a dispute under the terms of the partnership deed. Accordingly, the trial court came to a conclusion that court cannot refer the matter to an arbitrator due to non compliance with the provisions mentioned u/s 8(2) of the Act and the plaintiff’s claims for the recovery of investment are 7 seen as falling within the jurisdiction of the civil court, rather than being subject to arbitration. 11. On perusal of the impugned order dated 19.10.2020 passed by the trial Court in I.A No. X, i.e., Application seeking the review of order passed in I.A. No. VIII, that Para 15 of the earlier order on IA No. VIII made it clear that the arbitration clause in the partnership deed does not apply to disputes about recovery of investments, specifically under Clause 12 of the deed. Therefore, the plaintiff is entitled to approach the civil court for these matters and also asserted that the earlier dismissal was not based purely on the technical ground of the non-production of the deed, but on a substantive review of the partnership deed. Specifically, Para 15 highlighted that disputes about recovery of capital investments fall outside the scope of arbitration, as per the terms of the deed. Thus, the court had already considered the full text and implications of the partnership deed in its earlier order and further stated that the order in I.A.No.8 is appeable order. If the petitioner is aggrieved by the earlier order, he has to take remedies under the before the appellate Court, instead of filing appeal, the petitioner chose to file a review petition under Order XLVII, Rule 1 of the CPC r/w. Section 8 of the Arbitration and 8 Conciliation Act, 1996 and dismissed the review petition filed by the petitioner. 12. On perusal of the entire record and material placed before this Court, it is opined that the trial Court has rightly rejected the application filed by the petitioner under Order XLVII, Rule 1 of the CPC read with Section 8 of the Arbitration and Conciliation Act, 1996. Furthermore, this Court relied on the Judgment of the Hon’ble Apex Court in Rahimal Bathu and others vs. Ashiyal Beevi reported in 2023 SCC ONLINE SC 1226 and also relying on the provision of law under Section 37 of the Arbitration and Conciliation Act, while refusing the application under Section 8 of the Act, the remedy is available to file an appeal not by filing a review before the same court. In the present case, the petitioner filed I.A.No.8 before the trial Court under Section 8 of the Arbitration and Conciliation Act, 1996. On dismissing the same, the petitioner filed I.A.No.10 under Order XLVII, sub-clause (1)(a) of the CPC r/w. Section 8 of the Arbitration and Conciliation Act, 1996. 13. In view of the same, there are no merits to interfere in the impugned Order dated 19.10.2020 passed in O.S.No.233/2016 on 9 the file of IV Additional Civil Judge and JMFC, Udupi on I.A.No.10. The trial Court has passed a reasoned order. Hence, the Writ Petition is dismissed. Sd/- (DR. K.MANMADHA RAO) JUDGE BNV Ct-adp