Back
2018 Supreme(Cal) 355
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
PATHERYA, RAJASEKHAR MANTHA, JJ.
Smt. Shanti Dey @ Santi Dey - Petitioners
Versus
Sri Suvodeep Saha - Respondents
F.M.A.T. 1196 of 2016 With C.A.N. 10852 of 2016
Decided On : 02-01-2018
For the Appellant : Mr. Sukanta Chakraborty, Mr. Anindya Halder.
The main legal point established in the judgment is the consideration of the arbitration clause in the partnership agreement and the need to protect partnership assets, which influenced the court's decision.
Headnote:
Section 9 - Interim Measures - 1996 Act - [Section 9, Section 11] - The court vacated the interim order passed under Section 9 of the 1996 Act, citing potential interruption of a project and escalation of project cost. The court also considered the balance of convenience and inconvenience, stating that the appellant could be adequately compensated by an order of damage or loss measured by money. However, the partnership agreement included an arbitration clause, and the widow sought to ensure the assets of the partnership firm without being frittered away. The court's decision allowed the surviving partner to make unilateral decisions, which would be against the interest of the appellant.
Fact of the Case:
The appellant's application under Section 9 of the 1996 Act was dismissed, and the interim order was vacated, leading to the appeal. The court restrained the respondent from transferring any portion of the properties listed in the schedules and from operating any bank account in the name of the partnership firm, except in the usual course of business.
Finding of the Court:
The court found that vacating the interim order was based on the potential interruption of a project and the balance of convenience and inconvenience, which did not consider the arbitration clause in the partnership agreement and the appellant's interest in protecting the partnership assets.
Issues: The issues revolved around the vacating of the interim order under Section 9 of the 1996 Act, the potential impact on the project, and the balance of convenience and inconvenience.
Ratio Decidendi: The court's decision was influenced by the potential project interruption, the balance of convenience and inconvenience, and the need to protect the partnership assets as per the arbitration clause in the partnership agreement.
Final Decision: The court stayed the order dated 16th August, 2016 as an interim measure for a period of six weeks and restrained the respondent from transferring any portion of the listed properties and operating any bank account in the name of the partnership firm, except in the usual course of business.
1. This appeal has been filed from the order dated 16th August, 2016. By the said order the application filed under Section 9 of the 1996 Act filed by the appellant was dismissed and the interim order passed was vacated. The application filed under Section 9 of the 1996 Act was filed in April, 2014 and since the interim order was passed it was continued. It is only by virtue of the order dated 16th August, 2016 that this interim measure and the order of injunction passed was vacated. Section 11 of the 1996 Act was filed on 24th March, 2016 and is pending.
2. The only reason for vacating the order of temporary injunction by the Court below is that in case the injunction is granted or continued commercial transaction will be seriously hampered and the project will be interrupted which will escalate the project cost. Another reason for having passing the order dated 16th August, 2016, as the court below relied on the balance of convenience and inconvenience and according to the Court below the appellant would be adequately compensated by an order of damage or loss and this can be measured by money. This reason cannot be sustained prima facie at the moment as the partnership firm was constituted by two persons namely the deceased husband of the appellant and Mr. Suvodeep Saha. An arbitration clause was incorporated in the partnership agreement, and all that the widow was seeking to do was to ensure the assets of the partnership firm without being frittered away and on being satisfied with the submission of the appellant the Court below passed the order of injunction. In vacating the order of temporary injunction the Court below allowed the surviving partner to take decisions unilaterally which will enure to his benefit especially when the business of the partnership firm is to develop the real-estate and/or properties. This will be against the interest of the appellant.
3. In spite of service of notice received by the respondent as will appear from the affidavit of service the order dated 16th August, 2016 be stayed as an interim measure for a period of six weeks. In the meantime as all documents before the court below has been annexed, except the written objection filed by the respondent, let the said written objection be also included in the paper book and the appeal be heard within a week from the filing of such paper book as mentioned above.
4. It is in view of the facts before us that the respondent is restrained from transferring any portion of the properties, as it appears before the Schedules annexed to the application filed under Section 9 of the 1996 Act. The said Schedules have been set out hereinbelow for ready reference :
“SCHEDULE “A” PART-1
5. ALL THAT piece or parcel of land measuring about 3 (three) cottah more or less situated at Mouza–Krishnapur, J.L. No.–17, Re.Sa. No.–180, Touzi No.–228, and 229 comprising to C.S. Khatian No.–524, R.S. Khatian No.–360, C.S. Dag No.–5025, R.S. Dag No.–3034, being plot No.–AG-49, Municipal Holding No.–RGM/137/111, Block–D which is butted and bounded by :
On the North : R.S. Dag No.–3034 & 6ft. wide road
On the South : 16ft. wide road
On the East : 8ft. wide road
On the West : Part of R.S. Dag No.–3034
SCHEDULE “A” PART–II
ALL THAT piece of percel of Land measuring about 2 (two) cottah 41 Sq. ft. more or less situated at Mouza–Krishnapur, J.L. No.–17, Re.Sa. No.–180, Touzi No.–228, and 229 comprising to C.S. Khatian No.–524, R.S. Khatian No.–360, C.S. Dag No.–5025, R.S. Dag No.–3034, being plot No.–49/1 Municipal Holding No.–RGM/25/1635 under police Station Rajarhat-Gopalpur Municipality which is butted and bounded by :
On the North : 6ft. wide road
On the South : land of Sandhya Sen
On the East : 8ft. wide road
On the West : land of Anil Kumar Das
SCHEDULE “B”
ALL THAT piece of percel of land masuring about 3 (three) cottah 12 (twelve) chittak more or less situated at Mouza–Krishnapur, J.L. No.–17, Re.Sa. No.–180, Touzi No.–228, and 229 comprising to R.S. Khatian No.–49, C.S. Dag No.–3
