Shri Yogesh Laxmandas Rawal And ORS v. Shri Chhailsingh Shivsingh Jaitawat And ANR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO. 58 OF 2016 Shri Yogesh Laxmandas Rawal & Ors.
.. Petitioners Vs.
Shri Chhailsingh Shivsingh Jaitawat & Anr.
.. Respondents Mr.Raju Digamber Suryawanshi for petitioners. Noen for respondents.
CORAM : K.R.SHRIRAM, J.
DATE : 17TH NOVEMBER 2017 P.C.
This is an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (The Act). The underlying dispute is arising out of a Partnership Deed entered into in April 2011. Though the date is not mentioned in the Partnership Deed, the stamp duty has been paid on 15th April 2011. For convenience, this document is referred to as Partnership Deed dated 15th April 2011. Clause 15 of the Partnership Deed reads as under :
"15 Any difference or disputes whatsoever which shall either during partnership or after the termination thereof arise between the partners or their respective representative of the other partner or partners touching these presents or the Construction or application thereof or any clause or things herein contains or any account, valuations, divisions, debts or liabilities to be made hereunder or as to at any act, deed or omission of any partner or as to any other matter in any other matter in any way relating to the partnership business of 1/4
the affairs or the rights, duties, liabilities of any persons under these presents shall be referred to single arbitrator in case the parties agreed upon one or two such arbitrators as may be appointed by each party to the differences, in accordance with and subject to the provisions of the Indian Arbitration Act, 1940 or any statutory modifications or revisions, or re-enactment thereof for the time being enforce and the award of arbitrators or such arbitrator or the umpire as the case may be, shall be, binding on all the parties to the said disputes."
Parties have entered into Memorandum of Understanding, dated 12th September 2015 (MOU) under which petitioner was supposed to retire from the Partnership Firm upon payment of certain amounts. It is the case of petitioner that the entire amount, as agreed, has not been paid and hence the time to retire from the Firm has not come up. Respondents have not been appearing for the last three occasions. Even today, respondents are absent though name of their Advocates is mentioned in the cause list. When the matter was called out in the pre-lunch session, respondents were absent. Even in the post-lunch session, respondents are not present. Affidavit in reply, however, is on record from which it appears that the stand of respondents is that the parties having entered into MOU dated 12th September 2017, nothing remains in the Partnership Deed, dated 15th April 2011 and hence there is no arbitration clause.
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The fact is the Partnership Deed does provide for arbitration. Whether the MOU brings to an end to Partnership Deed and what was intention of the parties, can only be decided in a trial. Therefore, keeping open the rights and contentions of the parties, the following order is passed : (i) Ms.Gauri Godse, an Advocate practicing in this Court having, (I) Office Address : AAWI, Room No. 18, Ground Floor, High Court, Mumbai, Tel. No.22636710, 22709045 and (ii) Office No.1, Chamber No. 8, Cosmos, Ground Floor, Karim Chambers, Ambalal Doshi Marg, Behind Milan Coffee House, Fort, Mumbai-400001 Mobile No. 9820187392, is appointed as Arbitrator to arbitrate on disputes and differences including counterclaim, if any arising out and/or in connection with and relating to Partnership Deed dated 15th April 2011 read with MOU dated 12th September 2015.
(ii) Petitioner and respondents are at liberty to take out fresh application before the learned Arbitrator under Section 17 of the Arbitration and Conciliation Act, 1996 (The said Act).
(iv) All rights and contentions of parties are kept open. 3/4
(v) The fees, administrative expenses, typing charges and venue expenses of the Arbitrator shall be shared equally between parties, i.e., 50% by petitioner and 50% by respondents and the same will be costs in the arbitration proceedings.
(vi) Within four weeks of receiving a communication from the advocate for petitioner and/or respondents, the Arbitrator shall give in writing, to directly to parties disclosure as required under Section (11)(8) read with Section 12(1) of the said Act.
Petition accordingly disposed.
(K.R. SHRIRAM, J.) 4/4