Bombay High Court
Shri. Vijay S/O. Dwarkadasji Verma vs Shri. Omprakash S/O. Ramniwas Verma And ... on 6 May, 2016
Author: Z.A. Haq
Bench: Z.A. Haq
1 mca91.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION NO.91 OF 2016
Shri Vijay s/o Dwarkadasji Verma,
Aged about 48 years,
Occupation - Business, and
Resident of Main Road, Malkapur,
District - Buldhana. ig .... APPLICANT
VERSUS
1) Shri Omprakash s/o Ramniwas Verma,
Aged about 50 years,
Occupation - Business,
Resident of Shraddha Alankar,
Sahadev Complex, Main Road,
Malkapur, District - Buldhana.
2) Shri Govardhan s/o Ramniwas Verma,
Aged about 56 years,
Occupation - Business,
Resident of Trimurti Apartment,
Jatharpeth, Akola, District - Akola.
3) Shri Ashok Mangilal Soni,
Aged about 50 years,
Occupation - Business,
Resident of Near Hatekeshwar Temple,
Khadakpurna, Khandawa, Tahsil and
District Khandawa (Madhya Pradesh) .... NON-APPLICANTS
______________________________________________________________
Shri N.S. Bhattad, Advocate for the applicant,
Shri R.M. Bhangde, Advocate for the non-applicants.
______________________________________________________________
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CORAM : Z.A. HAQ, J.
DATED : 6
MAY, 2016
th
ORAL JUDGMENT :
1. Heard Shri N.S. Bhattad, Advocate for the applicant and Shri R.M. Bhangde, Advocate for the non-applicants.
2. Rule. Rule made returnable forthwith.
3. The applicant has filed this application under Section 11 of the Arbitration and Conciliation Act, 1996 praying that an arbitrator be appointed to resolve the dispute.
4. The application is opposed by the non-applicants on the ground that in fact there is no dispute and the liabilities and entitlement of the parties were worked out long before.
5. With the assistance of the learned Advocates for the respective parties, I have examined the documents filed on the record.
It is admitted that if there is a dispute between the parties in respect of the partnership business, it is required to be resolved by an arbitrator.
It is undisputed that the applicant had filed Regular Civil Suit ::: Uploaded on - 18/05/2016 ::: Downloaded on - 30/07/2016 01:09:16 ::: 3 mca91.16 No.152/2008 before the Civil Court, Malkapur, in which the non-
applicants filed an application under Section 8 of the Arbitration and Conciliation Act, 1996, which was allowed by the order dated 30-10- 2010 and the civil Court concluded that the dispute between the parties is required to be resolved by an arbitrator. The order passed by the civil Court was challenged before this Court in Writ Petition No.944/2011 which was dismissed on 14-12-2011. The further challenge by the applicant in Letters Patent Appeal is dismissed.
6. The non-applicants had issued the communication dated 27-11-2010 through their advocate to the applicant proposing that Shri Ashok Ramniwasji Verma, Chartered Accountant will be arbitrator on their behalf. The applicant had not taken any steps in the matter and prosecuted the Writ Petition and then Letters Patent Appeal. After disposal of the Letters Patent Appeal, the applicant sent the communication dated 23-11-2012 proposing the name of Shri Sanjay B. Solat, Advocate as the arbitrator. The inter-se communications continued till 27-04-2015 and they show that the arbitrators appointed by the parties could not agree on appointment of an Umpire. In these circumstances, the applicant has approached this Court.
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7. Considering the above facts, I find that the dispute between the parties will have to be resolved by the learned Arbitrator.
The claim made by the applicant cannot be said to be a stale claim.
This Court has jurisdiction to entertain and decide the application. In view of the facts on record, the jurisdiction under Section 11(6) of the Arbitration and Conciliation Act, 1996 is required to be exercised.
8. Hence, the following order :
i) Shri M.N. Gilani, Former Judge of this Court is appointed as Arbitrator to resolve the dispute.
ii) The applicant and the non-applicants shall pay the fees of the learned Arbitrator directly.
iii) The applicant shall deposit Rs.50,000/- and the non-
applicants together shall deposit Rs.50,000/- with the Registry of this Court within six weeks towards security for the fees of the learned Arbitrator.
This amount shall be kept with the registry of this Court till the arbitration culminates.
iv) In addition, the applicant shall deposit Rs.10,000/- with the Registry of this Court within six weeks towards processing charges.
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v) The learned Advocate for the applicant has submitted that according to the deed of partnership, the applicant is having 20% of share and therefore, the liability of the expenditure of the arbitration proceedings should be determined accordingly. In my view, it would not be appropriate for this Court to consider this issue and it is left to the learned Arbitrator to consider this issue, if raised by the parties.
vi) Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE pma ::: Uploaded on - 18/05/2016 ::: Downloaded on - 30/07/2016 01:09:16 :::