Rajasthan High Court - Jaipur
Smt Gayatri Tiwari vs Arvind Tiwari & Ors on 15 July, 2010
Author: Jagdish Bhalla
Bench: Jagdish Bhalla
S.B.Arbitration Application No.10/2009 Smt.Gayatri Tiwari V/s Shri Arvind Tiwari & ors. 15.7.2010 Hon'ble the Chief Justice Mr.Jagdish Bhalla Mr.S.Kasliwal for the applicant. Mr.A.K.Bhandari, Sr.Advocate for respondents No.11 and 12.
Mr.G.P.Sharma for respondent No.10.
Mr.R.P.Vijay for respondents No.3,4,6 & 7.
Mr.S.K.Tiwari for respondents No.5, 8 & 9.
This is an application under section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the Act) for appointment of Arbitrator.
According to learned counsel for the applicant, a partnership deed was executed on 29th March, 1984 between the applicant and the non-applicants under the name and style M/s Shri Govind Enterprises for carrying on the business of real estate, dealers, construction of buildings, residential/commercial complexes, developing sites, renovating immovable properties, cinema house, hotels, flats etc. It has been emphatically argued on behalf of the applicant that there is in-action on the part of the non-applicants to honour the agreed terms and conditions of the partnership deed for considerably a long period of 24 years, as such, the purpose of constitution of partnership firm has been defeated and inspite of best efforts made by the applicant, the non-applicants have failed to divulge the accounts and actual status of the business of the partnership firm, despite the fact that the applicant had contributed her immovable property in the firm. In such circumstances, the applicant gave a notice dated 10th October, 2008 (Annex.2) to the non-applicants and in para 4 and 5 of that notice, a dispute has been indicated by the applicant and prayed for appointment of Arbitrator invoking arbitration clause no.18 of the partnership deed. Paras 4 and 5 of the said notice are quoted here:-
4. That after the constitution of partnership firm to the best of my client's knowledge, the partnership firm has done no business nor any accounts of the firm were ever maintained by you all. Besides this, my aforesaid client has on the one hand not received any money by way of interest on the contribution made and on the other not received any rent, which she was getting earlier. As such, due to total inaction on your part to honour the agreed terms and conditions of partnership deed, my aforesaid client feels cheated particularly by you No.3 to 12.
5. That since the partners of the firm failed to act as per partnership deed and did not carry out any business contrary to the purpose for which the firm was formed, as such, the purpose of constituting the partnership firm has been totally defeated. Hence, my aforesaid client is entitled to get her above mentioned immovable property back and also to get the partnership firm dissolved. My client has through her representatives approached you several times requesting you particularly No.3 to 12 to apprise her of the position of accounts but on one or the other pretext nothing has been revealed so far and, therefore, it appears to my client that the firm should be dissolved once for all.
It has been pointed out on behalf of applicant that since the partnership is at will, the same was dissolved by the applicant and by notice dated 20.11.2008, all respondents were informed.
Mr.A.K.Bhandari, Sr.Advocate appearing for respondents no.11 and 12 submitted that there is no dispute at all between the parties and has categorically submitted before this Court that in the notice dated 10.10.2008 (Annex.2), no dispute has been indicated by the applicant and even in the application for appointment of Arbitrator also, there is no reference of dispute, therefore, no Arbitrator be appointed. In support of that argument, he has relied upon the judgment of the Supreme Court in Union of India and ors. V/s Onkar Nath Bhalla & Sons (2009(3) Arb.LR 25 (SC)).
Apart from this, he has further argued that according to applicant, the partnership firm has already been dissolved now by a letter/notice dated 20th November, 2008, but the respondents do not agree with this proposition. According to him, the firm has not been dissolved and the applicant has no right to dissolve the firm.
Mr.G.P.Sharma, learned counsel appearing for respondent no.10 submitted that perusal of para 5 of the notice (Annex.2) reveals that the applicant has raised two disputes; firstly to take the property back and secondly for dissolution of the partnership firm. He also submitted that according to applicant, the partnership firm has been dissolved, but the same cannot be dissolved by her and it has not been dissolved till date. As far as the dissolution is concerned, such dispute is to be decided by the competent civil court and in support of this argument, he has relied upon Section 2(3) of the Act. Accordingly, he too submitted that Arbitrator cannot be appointed.
Mr.R.P.Vijay, learned counsel appearing for respondents no.3, 4, 6 and 7 submits that if there is any dispute, he has no objection regarding appointment of Arbitrator, but if Arbitrator is to be appointed then Mr.Justice Shiv Kumar Sharma, Judge (Retd.) of this Court may be appointed.
Mr.S.K.Tiwari, learned counsel appearing for respondents no.5, 8 and 9 has adopted the arguments advanced by Mr.A.K.Bhandari and Mr.G.P.Sharma.
As far as whether the partnership firm has been dissolved or not, this is a subject matter of the competent civil court and this Court while dealing with this application cannot record any finding regarding that dispute. This Court can only look into the fact if there is any dispute indicated by the applicant then the Arbitrator can be appointed.
From perusal of paragraphs 4 and 5 of the notice (Annex.2) dated 10.10.2008 and averments made in the application, it is crystal clear that a dispute has been raised by the applicant and therefore, in light of arbitration clause 18 of the partnership deed, the matter is to be referred to the Arbitrator for arbitration.
Accordingly, Mr.Justice V.S.Dave, Judge (Retd.), Rajasthan High Court, Dave Apartments, Block-A, Flat No.102, C-22 Sawai Jai Singh Highway, Bani Park, Jaipur is appointed as Arbitrator and the matter is referred to him alongwith claim and counter claim. The Arbitrator will fix his fee according to the Arbitration Manual.
With these observations, the application stands disposed of.
(Jagdish Bhalla)C.J. Parma