The main legal point established is the court's reliance on the unequivocal admission of the respondent and the presence of his signature on the Deed of Retirement to affirm the existence of the arbitration agreement, dismissing the novation argument.

ORDER

1. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 seeking appointment of a Sole Arbitrator in terms of Arbitration Agreement embodied in a Deed of Partnership dated 19th June, 2004. The firm is said to have been dissolved pursuant to notice dated 27th December, 2018 and the applicant one of the partners has invoked arbitration vide letter dated 9th October, 2019.

Parties

2. The Applicant an individual claims as a partner of one J. P. Enterprises a partnership firm having its registered office in Mumbai. Respondent nos. 1 to 4 are said to have been the other partners of the firm at the material time. Respondent nos. 2 and 3 are also individuals. Respondent no. 3 however is Karta and Manager of Dhiren N. Mehta HUF, Respondent no. 4 is a limited company. All of whom are partners of the firms.

3. It is the Applicant's case that the firm was initially constituted on 19th June, 2004 for carrying out the business of construction and development of immovable property. Clause 23 of this deed of 19th June, 2004 contained an arbitration clause which provides for reference to Arbitrators nominated by parties and a tribunal constituted under the provisions of the Arbitration and Conciliation Act.

4. It is the case of the Applicant that in 2005 the constitution of the firm underwent changes and Respondent no. 1 was admitted as partner. Respondent no. 1 - Nainesh Gandhi is said to be Karta and Manager of Nainesh Gandhi HUF. The partners of the reconstituted firm executed a Deed of Partnership dated 1st April, 2005. Clause 24 of the Deed of 2005 contained an arbitration clause providing for reference of disputes to a Sole Arbitrator or to Arbitrators nominated by each contesting party and for those Arbitrators to appoint a presiding Arbitrator. Under the said Deed there were five partners two of whom are not parties to the present application. The applicant, respondent no. 1 and respondent no. 3 were the remaining partners under the 2005 Deed.

5. Thereafter the firm underwent a further change and reconstitution as recorded under Partnership Deed dated 4th September, 2006 in which firm the applicant and respondent nos. 1 to 3 to the present application and one State Street Securities Pvt. Ltd. were partners. Reliance is placed on the said Partnership Deed of 2006. While this partnership was at will, Clause 24 embodied an Arbitration Agreement. Under the deed of 2006 share of the applicant was 35% and those of the respondent nos. 1, 2 and 3 were 10%, 15% and 25% respectively.

6. It is the Applicant's case as canvassed by Mr. Purohit that the original Partnership Deeds are not available with him. Only photocopies thereof are available. Mr. Purohit submits that between 2004 to 2007 various businesses were carried out by the the firm and the partners were entitled to their share of profit. Respondent no. 1's share was Rs.3,79,43,828/-. This amount was said to have been drawn till March, 2008. However, it was found that respondent no. 1 had drawn a sum of Rs.5.53 crores from the firms' bank account and upon ascertaining the share of respondent no. 1 in the partnership, respondent no. 1 was found to have drawn in excess of Rs. 2,31,15,500/- as of 6th August, 2007. On that date respondent no. 1 is said to have transferred the said amount to one Mahaveer Corporation wherein the applicant along with one Mr. Suresh Gaikwad and Mr. Pinakin Shah were partners. The overdrawn amount was reflected in the balance sheet of J. P. Enterprises. Mr. Purohit has relied upon Income Tax Returns of J.P. Enterprises as well for the period 2007-08, 2008-09 and 2017-18 and as late as 2018-19. These returns are believed to reflect the amounts overdrawn by respondent no. 1.

7. Mr. Purohit submitted that respondent no.1, Mr. Nainesh Gandhi had filed a Summary Suit No. 612 of 2018 in this court against the said Mahaveer Corporation and its partners which included the applicant seeking recovery of a sum of Rs. 2,31,15,000/- which was trans