O.P. Dwivedi, J.

1. The petitioner above named has filed Objections under Section 34 of the Arbitration and Conciliation Act, 1996 ( for short the Act) against order dated 17.11.2004 passed by Arbitral Tribunal holding that the prohibition contained in Section 69 of the Partnership Act is not applicable to the proceedings before Abitral Tribunal. The petitioner herein is a company incorporated under the Indian Companies Act, 1956 and the respondent herein is an unincorporated joint venture between two Companies incorporated outside India. In October 1996, the petitioner had invited bids for the construction of the Delhi-Noida Bridge Project under an engineering, procurement and construction contract (hereinafter referred to as EPC Contract). In response thereto respondent submitted their bid which was acceptedvide letter of acceptance dated 24.12.1997. An agreement was signed between the petitioner and the respondent on 19.1.1998 in Tokyo, Japan, for execution of the Delhi-Noida Bridge Project. The said agreement also contains an arbitration clause. On dispute having arisen between the parties the matter was referred to Dispute Review Board in terms of Sub-clause 67.1 of Part II. The findings of the Dispute Review Board were communicated to the partiesvide the letter dated 21.3.2001. Aggrieved by the finding of the Dispute Review Board, the respondent in terms of Clause 67.1 of the Contract invoked the arbitration clause vide their letters dated 3.4.2001, 14.5.2001 and 25.9.2001. The petitioner and respondent appointed their respective Arbitrators and two Arbitrators appointed the presiding Arbitrator. The respondent who was claimant before the Arbitral Tribunal filed claims. The petitioner thereupon filed an application for dismissal of claim, inter alia, on the ground that the respondent/claimant was an unregistered partnership and therefore it cannot launch any proceedings to enforce a right arising out of the agreement in view of Section 69(3) of the Partnership Act. This application was opposed by the respondent by filing a reply thereto. Their contention was that Section 69(3) of the Partnership Act does not apply to the arbitration proceedings. After considering submissions made by the learned Counsel for the parties, learned Arbitral Tribunal passed the impugned order dated 17.11.2004 holding that the prohibition contained in Section 69 of the Partnership Act is not applicable to the proceedings before the Arbitral Tribunal. Feeling aggrieved, the petitioner has filed Objections under Section 34 of thetreating it to be an interim award. The respondent has taken a preliminary objection as to the maintainability of these objections under Section 34 of the. According to the respondent the impugned order is a ruling by the Arbitral Tribunal on its own jurisdiction as contemplated under Section 16(2) of theand therefore the only remedy available to the petitioner is to approach the Court under Section 34 after the final award has been passed in accordance with Section 16(6) of the. Petitioners contention that Section 69(3) of the Partnership Act is applicable to the proceedings before to the Arbitral Tribunal is also vehemently contested by the respondent. This petition raises two important questions of law:

(a) Whether the bar contained in Section 69 (3) of the Partnership Act is applicable to the proceedings before the Arbitral Tribunal

(b) Whether the impugned order decides any jurisdictional plea referred to in Section 16(2) or 16(3) of the in which case the objections will not be maintainable at this stage

I have heard learned Counsel for the parties and perused the record.

Section 69 of the Partnership Act reads as under:

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

(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the person 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 a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not effect.

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

(b) the powers of an official assignee, receiver or Court under the Presidency town Insolvency Act 1909 (3 of 1909) or the Provincial Insolvency Act, 1920 (5 of 1920) to realize the property of an insolvent partner.

(4) This section shall not apply

(a) to firms or to partners 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 a kind specified in Section19 of the Presidency Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency towns, is not a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim.

3. Learned Counsel for the petitioner referred to a decision of the Supreme Court in the case of Jagdish Chandra Gupta v. Kajaria Traders (I) Ltd., AIR 1964 SC 1882 [LQ/SC/1964/169] . In that case the Supreme Court was considering the question of applicability of bar contained in Section 69 of the Partnership Act to an application under Section 8 of the Arbitration Act 1940 filed by one of the partners of an unregistered firm against other partner. The partnership agreement contained an arbitration clause but since it was not registered, the maintainability of application under Section 8 of the Arbitration Act 1940 was challenged on the basis of bar created by Section 69(3) of the Partnership Act. The High Court of Bombay by majority took the view that application under Section 8 of the Arbitration Act, 1940 was maintainable. In appeal Supreme Court analysed Section 69 of the Partnership Act in-depth and detail and held in para 9 as under:

(9) In our judgment, the words other proceeding in Sub-section (3) must receive their full meaning untrammelled 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-sections (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-section (3) and Sub-section (4).

4. It was held by the Supreme Court that since right to seek arbitration arises out of the Partnership Agreement which was unregistered and application under Section 8 of the Arbitration Act, 1940 is a proceeding to enforce a right arising out of the contract, it was not maintainable due to bar contained in Section 69(3) of the Partnership Act. According to Mr. Valmiki Mehta, Sr. Advocate for the petitioner, the observation made by the Supreme Court in para 9 of the judgment also applies to arbitration proceedings and therefore a claim lodged by the unregistered firm will be hit by Section 69 of the Partnership Act. The judgment in the case of Jagdish Chandra Gupta (supra) does not specifically lay down that the bar under Section 69 of the Partnership Act will apply to the proceedings before Arbitrator also. In order to clarify the position in this regard, learned Counsel for the petitioner has also cited a decision in the case of U.P. State Sugar Corporation Limited v. Jain Consturction Co. & Anr., I (2005) SLT 480=(2004) 7 SCC 332 [LQ/SC/2004/933] In that case facts were that the parties thereto had entered into an agreement on 11.4.1988 as regards certain civil works in a unit belonging to the appellant therein. Disputes and differences having arisen between the parties, the respondent therein filed an application under Section 20 of the Arbitration Act, 1940 in the Court of the Civil Judge, Dehradun for appointment of an Arbitrator in terms of Clause 34 of the Contract. The learned Civil Judge, Dehradun rejected the said petition on the ground that the same was not maintainable in view of Section 69 of the Partnership Act, as the plaintiff firm was not a registered one. The said finding was arrived at despite the fact that the respondent therein had filed an application for amendment of the said petition. According to the respondent, the plea regarding the registration of the firm was left out inadvertently. The respondent appealed to High Court of Uttaranchal which disposed of the appeal by observing that since Arbitration and Conciliation Act, 1996 has come into force, it will be open to the parties to approach the Chief Justice or his nominated Judges. In the appeal Supreme Court set aside the order of the High Court and remanded the case back to the High Court for fresh decision because in the event the High Court finds that the Civil Judge was wrong in rejecting the application for amendment of the plaint and in fact the respondent firm was registered under the Partnership Act, the question of throwing out the suit on that ground would not arise, but the firm must be registered at the time of institution of the suit and not later on. Learned Counsel for the petitioner has laid great emphasis on the observation of the Supreme Court in para 7 to the effect that it is true that the arbitral proceedings would not be maintainable at the instance of an unregistered firm having regard to the mandatory provision contained in Section 69 of the Indian Partnership Act 1932. According to learned Counsel for the petitioner this observation covers proceedings before the Arbitrator also and therefore above observation of the Apex Court must be construed to lay down that Section 69 of the Indian Partnership Act will be applicable to the proceeding before the Arbitrator also. In my view, such an inference cannot be drawn. Reading the judgment as a whole would indicate that while making those observations, the Supreme Court was conscious of the fact that respondent had filed an application under Section 20 of the Arbitration Act, 1940 on 1.5.91 and thus arbitral proceedings had been set in motion. There is clear observation to this effect in para 9. This means that while making the observations referred to in para 7 of the judgment, Supreme Court treated Section 20 petition as setting in motion of arbitral proceedings and it is in this context that the observation made in para 7 must be read and understood. This judgment is not an authority for the proposition that Section 69 of the Partnership Act will apply to the proceedings before the Arbitral Tribunal. Section 20 petition was a proceeding before the Court and therefore it was not maintainable at the instance of unregistered firm in view of law laid down by the Supreme Court in the case of Jagdish Chandra Gupta (supra). In the case of Firm Ashok Traders v. Gurumukh Das Saluja, I (2004) SLT 449=I (2004) CLT 217 (SC)=(2004) 3 SCC 155 [LQ/SC/2004/39] ) while considering the question of applicability of Section 69(3) of the Partnership Act to an application under Section 9 of theSupreme Court has held that Section 9 petition is neither a suit nor a proceeding for enforcement of right arising out of the contract. It is a petition seeking relief available to the party to the agreement under the Arbitration Act. Therefore, Section 69 will have no application to Section 9 petition. Reference was also made to the decision in the case of Patel Roadways Ltd. v. Birla Yamaha Ltd., III (2000) SLT 554=II (2000) CLT 83 (SC)=I (2000) CPJ 42 (SC)=(2000) 4 SCC 91 [LQ/SC/2000/574] . in support of contention of learned Counsel for the petitioner that the term suit is a generic term taking within its sweep all proceedings initiated by a party for realization of a right vested in him under law. These observations have been made by the Court while considering the question of applicability of the statutory provisions of Carriers Act (Section 9) to a proceeding before the consumer forum. It was held that words used in the Carriers Act would cover the proceedings before the forum. None of these authorities lay down specifically that provisions of Section 69(3) of Partnership Act will or will not apply to arbitration proceedings before the Arbitral Tribunal. It is only in the case of Kamal Pushp Enterprises v. D.R. Construction Co., V (2000) SLT 804=III (2000) CLT 250 (SC)=(2000) 6 SCC 659 [LQ/SC/2000/1112] , that the Supreme Court has clearly stated in para 9 that the prohibition contained in Section 69 is in respect of instituting a proceeding to enforce a right arising from a contract in any Court by an unregistered firm, and it had no application to the proceedings before an Arbitrator. In that case the facts were that parties referred disputes to the Arbitrator. Appellant filed its claim and the respondent opposed the same. The Arbitrator passed an award in favour of the respondent and suo motu filed the award before the trial Court. When the Court issued notice to both the parties, appellant filed various Objections one of which was based upon the applicability of Section 69 of the Partnership Act. According to the appellant respondent was unregistered firm, therefore, it could not file any claim before the Arbitrator because such a claim was barred under Section 69 of the Partnership Act. The Supreme Court in para 9 observed as under:

The prohibition contained in Section 69 is in respect of instituting a proceeding to enforce a right arising from a contract in any Court by an unregistered firm, and it had no application to the proceedings before an Arbitrator and that too when the reference to the Arbitrator was at the instance of the appellant itself. If the said bar engrafted in Section 69 is absolute in its terms and is destructive of any and every right arising under the contract itself and not confined merely to enforcement of a right arising from a contract by an unregistered firm by instituting a suit or other proceedings in Court only, it would become a jurisdictional issue in respect of the Arbitrators power, authority and competency itself, undermining thereby the legal efficacy of the very award, and consequently furnish a ground by itself to challenge the award when it is sought to be made a rule of Court. The case before us cannot be said to be one such and the learned Counsel for the appellant though was fully conscious of this fact, yet tried to assert that it is open to the appellant to take up the objection based upon Section 69 of the Partnership Act, at any stage even during the post-award proceedings to enforce the award passed. The award in this case cannot either rightly or legitimately be said to be vitiated on account of the prohibition contained in Section 69 of the Partnership Act, 1932 since the same has no application to proceedings before an Arbitrator. At the stage of enforcement of the award by passing a decree in terms thereof what is enforced is the award itself which crystallizes the rights of parties under the Indian Contract Act and the general law to be paid for the work executed and not any right arising only from the objectionable contract. It is useful in this connection to refer to the decision of this Court in Satish Kumar v. Surinder Kumar wherein it has been stated in unmistakable terms that an award is not a mere waste paper but does create rights and has some legal effect besides being final and binding on the parties. It has also been held that the award is, in fact, a final adjudication of a Court of the parties own choice and until impeached upon sufficient grounds in an appropriate proceedings, an award which is on the face of it regular, is conclusive upon the merits of the controversy submitted for arbitration. Consequently, the post-award proceedings cannot be considered by any means to be a suit or other proceedings to enforce any rights arising under a contract. All the more so when, as in this case, at all stages the respondent was only on the defence and has not itself instituted any proceedings to enforce any rights of the nature prohibited under Section 69 of the Partnership Act, before any Court as such. We see no infirmity or error whatsoever in the decision of the Courts below to call for our interference in this appeal. The appeal fails and shall stand dismissed.

5. The Supreme Court observed that at the stage of the enforcement of the award by passing a decree in terms thereof what is enforced is the award itself which crystallises the rights of parties under the Contract and the general law to be paid for the work executed and not any right arising only from the objectionable contract at the post-award stage. In the opening sentence of para 9 Supreme Court has categorically declared that the prohibition contained in Section 69 is in respect of instituting a proceeding to enforce a right arising from a contract in any Court by an unregistered firm, and it had no application to the proceedings before an arbitrator and that too when the reference to the arbitrator was at the instance of the appellant itself. In the middle of paragraph the Supreme Court again observed that it had no application to the proceedings before an arbitrator. In view of this categorical pronouncement of the Supreme Court, there is no room for acceptance of the submission of the learned Counsel for the petitioner that it was only an obliter. Supreme Court was directly concerned with the applicability of Section 69 of the Partnership Act to the arbitration proceedings. Moreover even an obliter dictum of Supreme Court has to be followed [Sarwan Singh Lamba & Ors. v. Union of India & Ors., (1995) 4 SCC 546 [LQ/SC/1995/671] ]. While holding that Section 69 of the Partnership Act has no application to the proceedings before the Arbitrator, the Supreme Court has taken into consideration its decision in the case of Jagdish Chandra Gupta (supra) . In view of the observations made by the Supreme Court in para 9 of the judgment in Kamal Pushp Enterprises (supra), the contention of the learned Counsel for the petitioner to the contrary cannot prevail. The finding of the Arbitral Tribunal on the point is unexceptionable.

6. Now coming to question regarding maintainability of this petition under Section 34 of the Arbitration & Conciliation Act, 1996, learned Counsel for the respondent contended that in the impugned order learned Arbitral Tribunal itself has treated it as a question of jurisdiction. In the application the petitioner has also described the question of applicability of Section 69 of the Partnership Act as jurisdictional issue and therefore provisions of Section 16(6) of the Arbitration & Conciliation Act, 1996 are attracted.

7. Having considered the respective submissions of learned Counsel for the parties, I am of the view that the question regarding applicability of Section 69 of the Partnership Act cannot be treated as a jurisdictional issue. Petitioner had never challenged the jurisdiction of the Arbitrator. Rather they have submitted to the jurisdiction of the Arbitral Tribunal. Lack of jurisdiction is a deficiency/disability statutory, pecuniary or territorial attached to the adjudicating authority whereas bar of limitation or other statutory bars to entertain a particular claim is a deficiency/infirmity attached to the claim itself. Just as in a civil suit the Court does not cease to have jurisdiction because the suit is barred by limitation or by other provisions of law so also in arbitration proceedings any such legal bar to the maintainability of the claim would not effect the jurisdiction of the Arbitral Tribunal. Learned Counsel for the respondent has referred to the following observations made by the Supreme Court in para 9 in the case of Kamal Pushp Enterprises (supra):

If the said bar engrafted in Section 69 is absolute in its terms and is destructive of any and every right arising under the contract itself and not confined merely to enforcement of a right arising from a contract by an unregistered firm by instituting a suit or other proceedings in Court only, it would become a jurisdictional issue in respect of the Arbitrators power, authority and competency itself, undermining thereby the legal efficacy of the very award, and consequently furnish a ground by itself to challenge the award when it is sought to be made a rule of the Court.

8. These observations of the Apex Court cannot be read to mean that question regarding applicability of Section 69 of the Partnership Act is a jurisdictional issue. The bar under Section 69 is not absolute because it does not destroy every right arising under the contract. Sub-section 3(a) and Sub-section (4) of Section 69 of the Partnership Act provide exceptions to the rule of applicability to Section 69 of the Partnership Act which creates a bar only to the institution of a suit or any other proceedings in the Court by an unregistered firm. In the very next sentence the Supreme Court observed, case before us cannot be said to be one such. In the case of National Thermal Power Corporation Ltd. (NTPC) v. Siemens Atiengesellschaft (SAG), 121 (2005) DLT 36 [LQ/DelHC/2005/74] =2005 VI AD (Delhi) 256 it was held that a decision by the Arbitrator that counter claim filed by the opposite side stood settled and, therefore, not arbitrable, does not amount to a jurisdictional plea within the meaning of Sections 16(2), 16(3) of the and an appeal against such an order will not be maintainable under Section 37 of the.

9. In the case of State of Karnataka & Ors. v. B. Krishna Bhat & Ors., 2001 (2) Kar. L.J.1 (FB), it was held that inherent lack of jurisdiction cannot be cured, a mere lack of jurisdiction can be cured by consent or waiver. In this very judgment a reference has been made to a decision in the case of Hira Lal Patni v. Kali Nath, AIR 1962 SC 199 [LQ/SC/1961/241] wherein the Supreme Court has observed that it is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction. The Court further observed that pecuniary jurisdiction and territorial jurisdiction are not regarded as falling under inherent jurisdiction of civil Courts. Objections on the ground of lack of these jurisdictions are technical in nature and unless raised at the earliest opportunity, will not be entertained to non-suit a plaintiff. On the other hand, objection on the ground of lack of inherent jurisdiction can be raised at any time, and cannot be waived. In the present case Arbitral Tribunal has been appointed in accordance with the arbitration clause contained in the agreement dated 19.1.98 signed between the parties. It is also not the case of either party that in deciding the question regarding applicability of Section 69 of the Partnership Act to arbitration proceeding the Arbitral Tribunal has exceeded the scope of its authority. The impugned order, therefore, cannot be said to be one under Section 16(2) or 16(3) of the. In the case of Union of India & Anr. v. M/s. East Coast Boat Builders & Engineers Ltd., 76 (1998) DLT 958 [LQ/DelHC/1998/744] =AIR 1999 Delhi 44, this Court (A.K. Srivastava J.) has held that an order whereby the Arbitrator holds that it has jurisdiction to enter upon reference to decide the disputes between the parties is not appealable in view of Section 37 nor it is an interim award. Para 18 of the judgment reads as under:

18. If an order on the point of jurisdiction of the Arbitral Tribunal was to be an interim award under the, Section 37 of thewould not have provided for appeal against an order whereby the Arbitral Tribunal holds that it has no jurisdiction. While enacting Section 16 of the Act, the Legislature was conscious that the Arbitral Tribunal could hold in its favour or against itself on the point of jurisdiction. If the Legislature had to treat an order under Section 16 to be an interim award, it would not have provided for an appeal under Section 37 where the Arbitral Tribunal allows the plea that the Arbitral Tribunal does not have jurisdiction and the Legislature would have left challenge to such order as well under Section 34 of the. It cannot be accepted that the order under Section 16 would change its nature upon two different contingencies, that is to say, where the order rejects the plea of no jurisdiction it becomes an interim award and where the Arbitral Tribunal allows the plea of no jurisdiction it is not an interim award and only appealable. Therefore, it can easily be interpreted that in either case it is only an interim order and not an interim award. Analogy of British law on the subject cannot be pressed into service because under the British Arbitration Act such order has been specifically termed as award whereas in the Indian Arbitration Act such order has not been so specifically termed.

10. This decision is of no help to the respondents because by the impugned order the learned Arbitrator has decided a contentious issue between the parties regarding the maintainability of the claim. This issue is not concerned with the competence of the Arbitral Tribunal, therefore, the impugned order cannot be placed in the category of orders passed under Sections 16(2) and 16(3) of the. It negates the plea of a legal infirmity attributed to the claim itself. It is, therefore, not an interim order but an interim award which can be challenged under Section 34 of the.

11. In view of my discussion above, I hold that the impugned order is in the nature of interim award which can be challenged under Section 34 of the. Therefore, this petition is maintainable. On merits, the view taken by learned Arbitral Tribunal that Section 69 of Partnership Act has no application to the proceedings before the Arbitral Tribunal is legally sound and calls for no interference.

In the result this petition fails and is hereby dismissed.