Delhi High Court
Narain Sahai Aggarwal vs Santosh Rani on 21 July, 1997
Equivalent citations: AIR1998DELHI144, 70(1997)DLT610, AIR 1998 DELHI 144, 1997 (2) ARBI LR 322, (1997) 70 DLT 610, (1998) 2 CIVILCOURTC 600, (1997) 2 ARBILR 322
Author: K.S. Gupta
Bench: K.S. Gupta
JUDGMENT K.S. Gupta, J.
(1) By this common order I propose to dispose of I.As. 8243 and 9343/96 filed by Narain Sahai Aggarwal,petitioner,and I.A. 11297/96 filed by Smt. Santosh Rani, respondent.
(2) I.A. 8243/96 has been filed, inter alia, on the allegations that the petitioner and the respondent entered into a partnership deed dated October 5,1995. Petitioner is the working partner while respondent is the sleeping partner of the partnership firm 'Sahraj Overseas'. Respondent arranged for meagre funds besides providing accommodation at 358, Kohat Enclave. Peetampura Road, New Delhi, for running the partnership business. Bulk of the funds for the business was arranged by the petitioner. It is alleged that in June, 1966 respondent forcibly ousted the petitioner from the aforesaid property and also took possession of the movable properties of the partnership firm lying there. On September 6,1996, petitioner has come to know that the respondent has contacted some property dealers of the area to dispose of property No. 358, Kohat Enclave she is further going to dispose of movable assets of the partnership firm, as detailed in Annexure-1 filed alongwith the petition. It was prayed that by issue of ad interim injunction respondent or her agents be restrained from selling, transferring, alienating, mortgaging the aforesaid property and also the movable assets worth Rs. 5,40,350.00 as detailed in Annexure- 2 till the pendency of the OMP.
(3) In continuation of the said application I.A. No. 9343/96 was filed on October 5, 1996. It is further alleged that the petitioner has learnt that the respondent has started another firm in said property No. 358, Kohat Enclave, in the name of 'Jain International ' and most of the stock of raw material has been consumed by the new firm. Most of the machines of the partnership firm have been shifted to new premises No. 239, Opposite Sethi Electroplaters, Shivaji Marg, village Peetampura and the respondent is using them for her own benefit. It was prayed that a Receiver may be appointed to take custody of the movable assets of the partnership firm lying at 358, Kohat Enclave and 239, Opposite Sethi Electroplaters, Shivaji Marg and to take possession of the aforesaid partnership property.
(4) Respondent has contested both the applicants by filing separate replies taking by and large identical pleas therein. It is not denied that the parties entered into a partnership deed dated October 5, 1995 and the entire business of the partnership firm was being looked after by the petitioner being a working partner, as alleged. It is stated that the sister of the respondent is married to the petitioner. Petitioner taking advantage of the close relationship allured the respondent to invest money in export business. She has now realised that she had been cheated by the petitioner. She gave gold weighing 427.500 gms. of the value of Rs. 2 lakh to be used for raising the funds besides providing money in cash to the petitioner as he was not having funds even to run his own business. Property No. 358, Kohat Enclave, is not the property of the partnership firm and was permitted to be used only for running business by the husband of the respondent and his brother. Petitioner after defrauding the respondent, who was only a sleeping partner, took away the finished and semi-finished goods to his office at 3992, Ajmeri Gate, leaving behind some machinery and scrap and refused to render the account when called upon to do so by the respondent on June 15,1996. Details of the machinery and scrap left behind by the petitioner are disclosed in the reply to the notice sent by the respondent to the petitioner. It is emphatically denied that the respondent has started business in the name of 'Jain International'. It is stated that visiting card my have been got printed by the petitioner himself to mislead the Court. It is further denied that raw material has been shifted to premises No. 239, Opposite Sethi Electroplaters, Shivaji Marg, as alleged. Photostat copy of the reply dated September 7,1996 to the petitioner's notice has been filed byway of Annexure-A alongwith the reply to I.A. 9343/96 by the respondent.
(5) I heard the parties' Counsel.
(6) In I.A. 9343/96, which was filed in continuation of I.A. 8243/96, in place of ad interim restraint order the petitioner has sought appointment of a Receiver of property No. 358, Ground Floor, Kohat Enclave and the movable assets as noted in Annexure-1 lying at the said property and at 239, Opposite Sethi Electroplaters. As regards appointment of a Receiver of the aforesaid property, contention of the respondent is that the property is owned by her husband and his brother and they had simply permitted use thereof for carrying on the partnership business. Admittedly, respondent's husband and his brother are neither the partners in the business nor was the aforesaid property in the tenancy of M/s. Sahraj Overseas. That being the position, said property cannot be treated as partnership property and, therefore, there is no occasion whatsoever for appointing the Receiver thereof.
(7) Petitioner amongst others has filed the photostat copy of the partnership deed dated October 5, 1995 entered into between the parties. Clause Ii thereof provides that the petitioner will be the working partner while respondent will be a sleeping partner. Case of the respondent is that the petitioner after defrauding her, took away finished and semi-finished goods to his office at Ajmeri Gate and refused to render the accounts when called upon to do so by her on June 15, 1996. On June 16, 1996, petitioner handed over to her three power presses of 10 ton capacity, one drilling machine, one winding machine, some rusty blackened goods, about 200 kgs. of raw material and some broken dies. On the contrary, contention of the petitioner is that on June 16, 1996, in the morning respondent came to his house alongwith her husband and son and took away the keys of property No. 358, Kohat Enclave and removed the articles as noted in Annexure-1 lying there.
(8) ANNEXURE-I also includes the articles which, according to the resplendent, were not handed over to her by the petitioner. Section 9 of the Arbitration and Conciliation Act, 1996, only deals with the interim measure by the Court. Obviously it is not with in the scope of the said section to inquire into the claim and the counterclaim made by both the parties in regard to the custody of the articles beyond what has been admitted by the respondent. Although the petitioner has failed to make out a case for appointment of a Receiver of the articles in possession of the respondent, still they need be protected being partnership property. Respondent is, therefore, restrained from selling, transferring or in any other way disposing them off pending dispute between the parties in regard to them. Both the I.As. 8243/96 and 9343/96 are disposed of accordingly.
(9) In I.A. 11297/96 under Order Xi, Rules 12 and 14 read with Section 151, Cpc has been filed by the respondent for seeking direction to the petitioner to file in Court all the original account books, documents relating to purchase of machinery, raw material, and export of finished good etc. to avoid further tampering with thereof by him.
(10) In the reply petitioner has alleged that all purchase and sale vouchers with challans etc. were lying in the office of the partnership firm at 358, Kohat Enclave and are now in custody of the respondent. He is only having the account books of the firm which he is ready to hand over to the Receiver to be appointed by the Court.
(11) Without going into the merits of the application, suffice it to say that such an application is not legally maintainable in the proceedings under Section 9 of the Act. Application is disposed of accordingly.