JUDGMENT :

SHEKHAR B. SARAF, J.

1. This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) for appointment of an arbitrator. The petitioner, Kanika Seth, is the wife of Shri Ranajit Kumar Seth, residing at 10/2F, Deshbandhu Road (East), Kolkata-700035 and is a partner of a partnership firm named M/s Ashutosh Roy Prafulla Kumar Roy (hereinafter referred to as ‘the firm’), having its registered office at 170, Mahatma Gandhi Road, Kolkata-700007 (hereinafter referred to as ‘the premises’).

2. The respondent no. 1-8 are the other partners of the firm and the respondent no. 9 is the firm in dispute and they are collectively referred to as the respondents.

Relevant Facts

3. On or about 11 November, 1957, the firm was formed. The firm acquired a property situated at 170, Mahatma Gandhi Road, Kolkata-700007. The rent fetched from the said premises is the sole source of income of the firm.

4. The firm was reconstructed from time to time and the same was lastly reconstituted on July 13, 2013. On mismanagement of affairs pertaining to share of rental income, the arbitration clause was invoked for the first time by predecessors of the respondent nos. 5 to 8 against predecessors of respondent nos. 1 to 4, as per the relevant clause of the partnership deed and it was decided that the premises would be sold out and an order of the Court was obtained to this effect. However, this was not ultimately given effect to.

5. At present, all the partners are heirs of the respective predeceased partners. The firm was purported to be sold to a Trust by respondent nos. 1 to 4. The Trust and respondent nos. 1 to 4 entered into a contract for sale of the former’s share in the firm. The petitioner also transferred her 37.5% share of the firm to the Trust, however this transfer was later revoked.

6. The respondent nos. 1 to 4 are presently managing the affairs of the said partnership firm. The respondent no. 8 had invoked the arbitration clause for the alleged breaches committed by Respondent no. 1-4.

7. On April 23, 2022, the petitioner invoked clause 20, being the arbitration clause of the partnership deed, against the respondent nos. 1 to 4. In reply on behalf of respondent no. 1, the said respondent neither gave consent nor opposed the appointment of the named arbitrator. The respondent Nos. 2, 3 and 4 duly received the notice, but did not reply. Therefore, the instant application has been preferred.

Rival Submissions

8. Learned Advocate appearing on behalf of the petitioner submitted the following arguments:

(a) The present proceeding is not misconceived and is not barred by estoppels, acquiescence or waiver and has locus. The petitioner has claims, particularly against respondents nos. 1 to 4 with regards to the firm.

(b) The partnership deed of 2013 was not reconstituted after removing the name of petitioner and therefore the petitioner has locus. Moreover, the petitioner has been made a party in ‘Terms of Settlement’ dated June 20, 2022 and its Supplementary Settlement as respondent no. 10, filed before the arbitrator, and therefore it is evident that the respondents admit that the status of petitioner as that of a partner.

(c) The position of Trustees cannot be questioned in the instant proceedings and the petitioner holds good right, title and interest in the firm.

(d) The former arbitration initiated by the Trust was for specific performance and it was on separate grounds. Furthermore, multiple references to arbitration can be made with respect to the same arbitration agreement. Reliance was placed on Gammon India vs. National Highways Authority of India, AIR 2020 Del 132 for the said proposition.

(e) The instant petition is not premature and the Sec. 21 notice was served. Besides, the petition is not barred by the principle of res judicata.

(f) The petitioner is not a party to the settlement agreement dated September 16, 2022 and therefore the instant application that has been filed is bona-fid