JAGDISH CHANDER GUPTA versus KAJARIA TRADERS (INDIA) LTD.

"such" may . as weU refer to the "income" in the opening sentence of sub-s. (3). The said rnb-section says that the incomes mentioned thereunder shall not be included in the ' total income, but the proviso lifts the ban and says that such incomes shall be included in the to:al income if the condi-tions laid down are satisfied. We think that the expression usuch income" only means the income accruing or arising in favour of the trust.

IfJfU CJ.T. "· "°-• Sublla Rao 1.

~I "· WanllJ incomes mentioned thereunder shall not be included in the

The legal position may briefly be stated thus. Clause (i) of s. 4,(3) of the Act takes in every property or frac-tional part of it held in trust wholly for religious or charit-able purposes. It also takes in :mch property held only in part for such purposes. Business is also property within the meaning of the said clause. Clause (b) of the proviso to s. 4(3)(i) applies only to business not held in trust but carried on on behalf of religious or charitable institutions.

For the foregoing reasons we hold that the High Court

has co~ectly answered the question referred to it.

In the result, the appeals fail and are dismissed with costs. One set of hearing fees.

Appeal dismissed.

1964 April, 29.

JAGDISH CHANDER GUPTA

KAJARIA TRADERS (INDIA) LTD.

(K. N. WANCHOO, M. HIDAYATULLAH, K. C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR JJ.) hrbitration Act-Partnership agreement-Provision for referring to arbitration-Partnership not registered-Application in the High Court for appointment of arbitrator-If maintainable-Interpreta-tion of statute-Ejusdem Generis--No1citur sociis-Indiarc Partnership Act, 1932 (9 of 1932), •· 69-Arbitration Act, 1940 (Act 10 of 1940), " 8(2).

lbo respondent entered into partnership agreement with tho appel-lant. But this was not registered. There was an arbitration clauoe sti-

pulatiog that in case of dispute the matter will be referred for arbitration in accordance \\ith Arbitration Act, 1940. Dispute having l\risen between the respondent and the appellant the former wrote to tho latter stating that the dispute be referred for arbitration and that the respondent has appointeil one K as the sole arbitrator. On the failure of the appellant to agree to this the respondent filed an application under s. 8(2) of the Indian Arbitration Act for the appointment of arbitrator. The applica-tion was hearil by Division Bench of the High Court before which the appellant contended that s. 69(3) of the Indian Partnership Act, 1932 afforded bar to tho petition because the partnership was not registered. One of the Judges upheld the contention while the other rejectell it and the matter was referred to another Judge who held that the application was competent. The present appeal was filed by special leave granted by this Court. HELD:-(i) That since the arbitration clause formed part of the agree-ment constituting the. partnership it is obvious that the proceeding which is before the Court is to enforce right which arises from contract. Whether one views the contract between the parties as whole· or on• Tiews only the arbitration clause it is impossible to think that the. riaht to proceed to arbitration is not one of the rights which are founded OD the agreement of the parties. The words of s. 69(3) "a right arisina from coiitract" are in either sense sufficient to cover tho present matters.(ii) Interpretation ejusdt:m ge11eris or nosc:itur l'Ociis need not always be made when showing particular classes are followed by general words. Before ·the general wvrds can be so interpreted there- must bo genus constituted or category disclosed with reference" to which tho 1eneral words can and are intende'd to be restricted. The expression "clairp. of set off" does not disclose category or genus. Set. offs are of two kinds legal and equitable and both are already comprehended and it is difficult to think of any right ""arising from contract• which is of the same nature as claim of set otl and can be raised bJ 4efendent in suit.

Allen v. Emerson, (1944) I K.B. 362. referrell to.

Hafiz Qamar Din v. Nur Din, A.I.R. 1936 Lah. 136, /Tabulal Dhaft Dhania v. Mis. Gautam & Co. A.I.R. 1950 Cal. 341, Kottama1u Sree-mannarayanamurthy v. Chakka Arja11ad11, A.l.R. 1939 Mad. 145, Jarnal Y. Firm Umar Haji Karfm, l.L.R. 1943 Nag.- 540, and R,tm Lal Harnam Das v. Bal Kishan. A.l.R. 1957 Punj. 159, distinguished.

(iii) The . words "other proceeding" in sub-section (3) must rec:eift lheir full meaning untramelled by the words "a claim of set oil". Tho latter words neither intend nor can be construed to cut down the sene-rality of the words "other proceeding". The sub-section provides for the application of tho provisions of sub-sections (!) and (2) to claims ol. aet otl an'd also to other proceedings of any kind which can proper)J be said to be for eQ{orcemeD;t of any right arising front contract except lh- expressly mentioned aa exceptions in sub-sections (3 T llld ( 4).

Jagduh Chantl1r

Ka/aria T1'fllhn

Crvn. APPELLATE JURISDICTION: Civil Appeal No. 791

1964 Crvn. lagdishchander of 1962 . ...

Appeal by special leave from the judgment and order dated March 22, 1960, of the Bombay High Court in Award No. 18 of 1959.

La/aria Tradm

S. T. Desai and /. N. Shroff, for the appellant.

B. C. Misra, for the respondent.

April 29, 1964. The Judgment of the Court was deli-vered by

HIDAYATULLAH J.-This appeal by special leave is direct-ed against an order of the High Court of Bombay dated Marc;1 22, 1960 in its ordinary original civil jurisdiction. The facts are simple. By letter dated July 30, 1955, Messrs. Kajaria Traders (India) Ltd., who is the respondent here and Messrs. Foreign Import and Export Association (sole proprietory firm owned by the appellant Jagdish ('. Gupta) entered into partnership to export between January and June 1956, 10.000 tons of manganese ore to Phillips Brothers (India) Ltd., New York. Each partner was to supply certain quantity of manganese ore. We are not concerned with the terms of the agreement but with one of its clauses which provided:

Hldt1)•atullah J.

"That in case of dispute the matter will be referred for arbitration in accordance with the Indian Arbitration Act."

The company alleged that Jagdish Chander Gupta failed to carry out his part of the partnership agreement. After some correspondence, the company wrote to J agdish Chander Gupta on February 28, 1959 that they had appoint-ed Mr. R. J. Kolah (Advocate O.S.) as their arbitrator and asked Jagdish Chander Gupta either to agree to Mr. Kolah's appointment as sole arbitrator or to appoint his own arbi-trator. J agdish Chander Gupta put off consideration and on March 17, 1959 the company informed Jagdish Chander Gupta that as he had failed to appoint an arbitrator within 15 clear days they were appointing Mr. Ko lab as sole arbi-trator. Jagdish Chander Gupta disputed this and the com-

pany filed on March 28, 1959 an applicMion under s. 8(2) of the Indian Arbitration Act, 1940 for the appointment of Mr. Kolah or any other per~on as arbitrator.

Jagdish Chander ... Kajaria Traden Hidayatul/JJ~ I.

Jagdish Chander Gupta appeared and objected inter alia to the institution of the petition. Two grounds were urged (i) thats. 8(2) of the Indian Arbitration Act was not appli-cable as it was not expressly provided in the arbitration clause quoted above that the arbitrators were to be by consent of the parties and (ii) that s. 69(3) of the Indian Partnership Act, 1932 afforded bar to the petition because the partnership was not registered. The petition was refer-red by the Chief Justice to Divisional Bench consisting of Mr. Justice Mudholkar (as he then was) and Mr. Juscice Naik. The two learned Judges agreed that in the circum-stances of the case an application under s. 8 of the Indian Arbitration Act was competent and that the court had power to appoint an arbitrator. They disagreed on the second eoint: Mr. Justice Mudhollcar was of the opinion thats. 69(3) of the Indian Partnership Act barred the application while Mr. Justice Naik held othe<wise. The case was then refer-red to Mr. Justice K. T. Desai (as he then was) and he agreed with Mr. Ju~tice Naik with the result that the ap?lic:ition was held to be competent.

In this appeal it was not contended that the conclusions of the learned Judges in regard to s. 8(2) were erroneous. The decision was challenged only on the ground that s. 69 (3) was wrongly interpreted and the bar afforded by it was wrongly disallowed. Section 69 of the Indian Partnership Act may be reproduced here :

"69. ( 1) No suit to enforce right arising from contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as partner in firm against the firm or any person alleged to be or to have been partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as partner in the firm.

1964 Jagdi.rh Chander •• Kajar/a Tradm Hldayatullah J.

(2) No suit to enforce fight arising from contract shall be instituted in any Court by or on behalf of firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of · Firms as partners in the firm.

( 3) The provisions of. sub-sections (1 ) and ( 2) shall apply also to claim of set-off or other proceeding to enforce right arising from contract, but shall not affect-

( a) the enforcement of any right to sue for the dissolution of firm or for accounts of dissolved firm, or any right or power to realise the property of dissolved firm, or

(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insol-vency Act, 1909, or the Provincial Insol-vency Act, 1920, to realise the property of an insolvent partner.

( 4) This section shall not apply-

( a) to firms or to partn.ers in firms which have no place of business in the territories to which this Act extends, or whose places of business in the said territories are situated in areas to which, by· notification under section 56, this Chapter does not apply, or

(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency towns, is not of kind specified in section 19 of the Presidency Small Cause Courts Act, 1882, or outside the Presi-dency-towns, is not of kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887, or to any proceed-ing in execution or other proceeding inciden· ta! to or afising from any such suit or claim.

The section, speaking generally, bars certMn· suits and pro-ceedings as consequence of non-registration of firms. Sub-

s. ( 1) prohibits the institution of suit between partners inter se or between partners and the Jinn for the purpose ot enforcing right arising from contract or conferred by the Partnership Act unless the firm is registered and the person suing is or has been shown in the Register of Firms as partner in the firm. Sub-s. ( 2) similarly prohibits suit by or on behalf of the firm against third party for the purpose of enforcing rights arising from contract unless the fum is registered and the person suing is or has been shown in the Register of Firms as partner in the firm. In the third sub-section claim of set-off which is in the nature of counter claim is also similarly barr~d. Then that sub-section bars "other proceedings". The only doubt that has arisen in this case is regarding the meaning. to be given to the expression "other proceeding". One way to look at the matter is to give these words their full and natural meaning and the other way is to cut down that meaning in the light of the words that precede them. The next question is whether the application under s. 8(2) of the Arbitration Act can be regarded as proceeding "to enforce right arising from contract'', and therefore, within the bar of section 69 of the Indian Partnership Act.'

Mr. Justice Mudholkar in reaching his conclusion did not interpret the expression "other proceeding" ejusdem generis with the words "a claim of set-off". He held further that the application was to enforce right arising from the contract of the parties. Mr. Justice Naik pointed out that the words used were not "any proceeding" nor "any other proceedings" but "other proceeding" and that as these words were juxtaposed with 'a claim of set off' they indicated proceeding of the nature of claim in defence. On the second point Mr. Justice Naik held that this was not ·procf',eding to enforce right arising from contract but was c!ltim for damages and such claim could be enter-tained because it was based on something which was inde-pendent of the contract to supply ore. He held that the right which was being enforced was right ansing from" the Arbitration Act and not from the contract of the parties. Mr. Justice K. T. Desai agreed with most of these conclu-sions and sugQested that the words preceding "other proceed-

Jagdish Chand• v. Ka/aria Trtukr Hidayatullah I

1944 Jagdish Chttnder v. Kaiaria Trf!.4.11~ Bidayatu/lah J.

ing", namely, "a claim of set-off" had 'demonstrative and

limiting effect'. He seems to have a5certained the meaning of the expression "other proceeding" by n;ference to the meaning of the words "a claim of s~.t off", which he considered were associated with it.

The first question to decide is whether the present pro-ceeding is one to enforce right arising from the contract of the parties. The proceeding under the eighth section of the Arbitration Act has its genesis in the arbitration clause, because without an agreement to refer the matter to arbi-tration that section cannot possibly be invoked. Since the arbitration clause is part of the agreement constituting the partnership it is obvious that the proceeding ~hich is before the court is to enforce right which arises from contract. Whether we view the contract between the parties as whole or view only the clause about arbitration, it i<i impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the agree-ment of the parties. The words of s. 69 ( 3) "a right arising from contract" are in either sense sufficient to cover the present matter.It remains, however, to consider whether by reason of the fact that the words "other proceeding" stand opposed to the words "a claim of set-off" any limitation in their meaning was contemplated. It is on this aspect of the case that the learned Judges have seriously differed. "ihen in statute particular classes are mentioned by name and then are followed by general words, the general words are some-times construed ejusdem generis, i.e. limited to the same category or genus comprehended by the particular words. But it is not necessary that this rule must always apply. The nature of the special words and the general words must be considered before the rule is applied. In Allen v. Emerson ('), Asquith J. gave interesting examples of particular words followed by general words where the principle ot efusdem generis might or might not apply. We think that the following illustration will clear any difficulty. In the expression "books, pamphlets, newsp~pers and other

(I) [1944) I K.B. 36z,

documents" private letters may not be held included if 1964 other documents' be intepreted ejusdem generis with what lagdishChalllh goes before. But in provision which reads "newspapers . v. or other document likely to convey secrets to the enemy'", KaJarra Trader: the words 'other document' would include document of Hidayatullah I any kind and would not take their colour from 'newspapers'. It follows, therefore, that interpretation ejusdem generis or noscitur sociis need not always be made when words showjpg particular classes are followed by general words. Befor~ the genezal words can be so interpreted there mu:st be genus constituted or category disclosed with referenc~ to which. the general words can and are intended to be restricted. Here the expression "claim of set-off" does not disclose category or genus. Set-offs are of two kinds--legal and equitable-and both are already comprehended and it is difficult to think of any right "arising from contract" which is of the same natuce as claim of set-off and can be raised by defendant in suit. Mr. B. C'. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any pro-ceeding of the nature of claim of set off other than claim of set-off which could be raised in suit such as is described in the second sub-section. In respect of the first snb-sect!on he could give only two examples. They are (i) claim by pledger of goods with an unregistered firm whose goodc. are attached and who has to make an objection under O. 21 r. 58 of the Code of Civil Procedure and (ii) proving debt before liquidator. The latte; is not raised as defence and cannot belong to the same genus as "claim of set-off". The former can be made to fit but by stretch· of some considerable imagination. It is difficult for us to accept that the Legislatu~; was thi11king of such far-fetc~ed things when it spoke of "other proceeding" ejusdem generi.• with claim of set-off.

Mr. Justice Naik asked the question .that if all proce_ed-ings were to be excluded why was it not considerecl suffi cient to speak of proceedings along with suits in sub-ss. (1) and (2) instead of framing separate snb-sec!ion about proceedings and coupling 'other proceeding' witli 'a claim of set-off'? The question is proper one to ask but

!Jie search for the answer in the scheme of the section itself gives the clue. T!J.e section thinks in terms of (a) suits and (b) claims of set-off which are in sense of the nature of suits and ( c) of other prnr;ec<lings. The section first provides for exclusion of suits :n '.;Jb-ss. ( 1) and (2). Then it says that_ the same ban applies to c:aim of set-off and other proceeding to _enforce .right arising from contract. Next it excludes the ban in respect of the right of dissolved to sue (a) for the dissolution of firm and ( c) for the realisation of the -firm, (b) for accounts ., property of dissolved firm. The emphasis in each case is on dissolution of the firm. Then follows general exclusion of the section. The fourth sub-section says that the section as whole, is not to apply to firms or to partners and firms which have no place of business in the territories of India or whose places of business are situated in the terri-tories of India but in areas -to which Chapter VIl is not to apply and to suits or claims of set off not exceeding Rs. 100 in value. Here there is no insistence on the dis-solution of the firm. It is significant ,.that in the latter part of clause (b) of that section the words are "or to any pro-ceeding in execution or other proceeding incidental to or arising from any such sujt or claim" and this clearly shows that the word "proceeding" is not limited to pro-ceeding in the nature of suit or claim of set-off. Sub-section ( 4) combines suits and claim of set-off and t!Jen ipeaks of "any proceeding in execution" and "other pro-ceeding incidental to or arising from any such suit or claim" as being outside the ban of the main section. It would hardly have been necessary to be so explicit if the words ·'other proceeding' in the main sec,(ion had meaning as restricted as is suggested by the respondent. It i~ possible that the draftsman wishing to make exceptions of different kinds in respect of suits, claims of set-off and other proceed-ings grouped suits in sub-ss. (1) and (2), set-off and ot!ler proceedings in sub-s. (3) made some special exceptions in respect of them in sub-s. (3) in respect of dissolved firms and then viewed them all together in sub-s. ( 4) providing for complete exclusion. of the section 'in respect of 1mits -0f particular classes. For convenience • of drafting this

1964 "1a,.U.h Chander v. Kafin'la Trader1 Hidayalullah I.

scheme was probably followed and nothing can be spelled out from the manner in y.'hich the section is sub-divided.

Some cases noticed by the High Co.art were cited to us but none of them appear§ to be really in point. In Hafiz Qamar Din v. Nur Din([1]) and Babu/al Dhandhania v. Messrs. Gauttam and Co. (2) proceedings were started on an award, in one to mi\ke it rule of the Court and in the other to get it set aside. These cases are distinguishable because they deal with awards and it is not necessary to decide ·whether after an award the proceeding is one to enforce right arising from contract. We do not refer to them. In Kottamasu Sreemannarayanamuthy and another v. Chakka Arjanadu([3 ]) petition for adjudication of partner as insolvent was held to be right arising not from contract but from statute. Here the right that is being enforced through the medium of the Arbitration Act arises from the contract between the parties and is part of it. In Jamal v. Firm Umar Haji Karim(') the bar of s. 69 ( 3) was claimed during the execution of consent decree and was disallowed. Grille C. J. observed that the 1xpression 'other proceeding' indicated something which was 'sui generis of claim of set-off', If the partners cf an unregistered firm go to court without either asking for dissolution of the firm or dissolving it themselves and enter into an agreement and compose their differences it is possi-ble to say that the enforcement of the consent decree is no more than the enforcement of right arising from contract and is . within the ban. It is, however, not necessary to decide. this point here. ln Ram Lal Hw,ram Das v. Bal Krishan and others(") it was expressly f!Ointed out that the expression 'other proceeding' in the third sub-section applied to proceedings of the nature of claim of set-off and nothing else. This case cannot be said to interpret the sub-section correctly. Similarly, Mahendra v. Gurdeyal("), which lays down that s. 69 does not bar partner of an unregistered partnership firm from applying to the court under ~- 8 of the Arbitration Act for referring the dispute

(t) A.I.R 1936 Lah. 136. (3) A.I.R. t939 Mad. 14,. (,) A.l.R. I9j7 Punjab r,,.

(2) A.T.R. 1950 Cal. 391.

(4) I.L.R. 1943 Nag. s40. (6) I.L.R- 30 Pat. 109. ·

Jagdi>h Chandu v. Ka/aria Trad""

Hldaya1ulla& J.

1964 between partners to arbitrator as provided in the condition Ja11dtsh Chander of t4eir agreement, cannot be accepted as souud. The .n.a]Orio v . . Y.T ra er' ,reason given by the Divisional Bench that as s. 69 - . . al~ows . -d1Ssc:Jl.utJ.on and accounts of unregistered partnership it Hidayarul/ah J. cannot bar such an application appe<:rs · •, "'; to be not quite m point.

1n ·our judgment, the words '0th.er proceeding' in sub-s. (3) must receive their full meaning untramelled by the words ·a claim of set-off'. The latter words neither intend nor can be construed to cut down the generality of the words 'other proceeding'. The sub-section provides for the application of the provisions of sub-ss. (1) and (2) to claims of set-off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-s. ( 3) and sub-s. ( 4).

The appeal is, therefore, allowed. The decision of the High Court will be set aside and the application under s. 8(2) of the Arbitration Act shall stand dismissed with costs throughout on the applicant in the High Court.

Appeal allowed

1964 April, 30.

STATE OF MADRAS

C. J. COELHO

(K. SUBBA RAo, J. C. SHAH AND S. M. SIKRI J.J.)

Incon1e Tax-Interest paid on monies borrowed for purchase of plantation-I/ deductible from the assessable income-Expsnditur• if laid out or expended wholly and exclusively for the purpose of plantation-Madras Plantations Agricultural Income .. fax Act (Mad. V of 1955), s. S(e) and (k). ·

The respondent, assessee purchased an estate, consi!lling of tea. coffee and rubber plantation•. Out of the sale price of Rs. 3,10,000/· ho borrowed Rs. 2,90.000/· at interest. For the assessment year 1955·56.