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2023 Supreme(Cal) 1175
IN THE HIGH COURT AT CALCUTTA [CIRCUIT BENCH AT JALPAIGURI]
ARIJIT BANERJEE, PARTHA SARATHI SEN, JJ.
Subho Deep Roy – Appellant
Versus
The State of West Bengal & Ors. – Respondents
M.A.T. No.72 of 2023 With IA No. CAN 1 of 2023
Decided on : 12-07-2023
Advocate Appeared:
For the Appellant : Mr. Amales Ray, Adv., Ms. Deborshi Dhar, Adv.
For the Respondent: Mr. Subir Kr. Saha, Ld. AGP, Mr. M. Rahman, Adv., Mr. Bikramaditya Ghosh, Adv., Mr. R.L. Mitra, Adv., Mr. Nirmalya Dasgupta, Adv., Ms. Priyanka Dhar, Adv., Mr. Dipankar Deb, Adv.
A partnership dispute, as defined in the partnership deed and governed by the Arbitration and Conciliation Act, 1996, should be resolved through arbitration, and neither the respondent authority nor the court has jurisdiction to decide such a dispute.
Headnote:
PARTNERSHIP - RENEWAL OF LICENCE - WEST BENGAL MOTORS SPIRIT AND HIGH SPEED DIESEL (LICENSING AND REGULATION OF SPIRIT) ORDER, 2000 - RULE 4 - FORM C1 - PARTNERSHIP DEED - CLAUSE 8 - ARBITRATION AND CONCILIATION ACT, 1996 - SECTION 11 - SUMMARY
Fact of the Case:
Appellant, a partner in a partnership firm operating a petrol pump, applied to the respondent authority for renewal of the business license under his sole signature, excluding the signatures of other partners. The respondent authority refused to renew the license and directed the appellant to submit an application under the signatures of all partners. The appellant filed a writ petition challenging the respondent's decision.
Finding of the Court:
The court held that the dispute raised by the appellant is a partnership dispute and neither the respondent authority nor the Learned Single Bench has any jurisdiction to decide such dispute. The court further held that the Learned Single Bench was justified in holding that the relief claimed by the writ petitioner relates to a partnership dispute which ought to be decided by the Learned Arbitral Tribunal.
Issues: 1. Whether the appellant has the right to apply for renewal of license on his own and single handedly? 2. Whether the respondent authority acted beyond its jurisdiction in directing the appellant to submit his application for renewal of license under the signatures of all the partners of the said firm?
Ratio Decidendi: 1. The court relied on the West Bengal Motors Spirit and High Speed Diesel (Licensing and Regulation of Spirit) Order, 2000, Rule 4 read with Form C1, which provides that any one partner of the partnership firm may apply for renewal of license. 2. The court also relied on the partnership deed entered into by and between the appellant and the private respondents, which provides that the partners of the said partnership firm shall be entitled to act jointly and/or severally. 3. The court further relied on the Arbitration and Conciliation Act, 1996, Section 11, which provides that where a dispute arises out of an arbitration agreement, the court shall refer the parties to arbitration.
Final Decision: The court dismissed the appeal and held that the impugned judgment and order passed by the Learned Single Judge in WPA 1206 of 2023 is justified and does not require any interference.
JUDGMENT :
Partha Sarathi Sen, J.
1. The judgement and order dated 01.06.2023 passed in the appellant’s writ petition being WPA 1206 of 2023 by a Learned Single Judge of this Court has been impugned in the instant appeal . By the impugned order Learned Single Judge dismissed the writ petition wherein prayer was made inter alia, for a direction upon the SDO, Mal, Jalpaiguri, the respondent no.5 herein, to renew the licence of the concerned partnership business on his own signature excluding the signatures of the other partners who are the private respondents herein. The writ petitioner, being aggrieved, has preferred the instant appeal.
2. For effective disposal of the instant appeal, the facts leading to filing of WPA 1206 of 2023 are required to be stated in a nut shell.
3. Admittedly the present appellant and the private respondent nos. 8 to 11 are the partners of a partnership business carried on under the name and style of ‘M/s Roy and Cousins’ which is a petrol pump at Mal, District Jalpaiguri. It is also a matter of record that in between the partners of the aforementioned firm, several litigations are pending both before the District Court as well as before this Court. From the material placed before us it appears that on account of dispute between the partners on an application under Section 11 of the Arbitration and Conciliation Act, 1996, being AP 279 of 2023 (Shyamal Roy and ors. vs. Subhodeep Roy), a Single Bench of this Court by its order dated 17.05.2023 constituted an Arbitral Tribunal to resolve the disputes between the partners of the said firm.
4. It is also undisputed that the said Arbitral Tribunal is still functioning and is at present in seisin of the matters which were referred to arbitration by the said Learned Single Bench in AP 279 of 2023. During the pendency of the said arbitral proceeding as well as civil suits pending before the District Courts, the present appellant/ writ petitioner, as the managing partner of the firms, made an application dated 14.12.2022 before the respondent no.5 authority for renewal of the business licence. It is also pertinent to mention herein that on account of discord between the partners, the private respondents on 12.11.2022 wrote a letter to the respondent authority not to renew the licence of the said petrol pump in the name of the said partnership firm only under the signature of the present appellant. As a result, the respondent authority being the S.D.O, Mal, Jalpaiguri under cover of its memo no.009/JM- MSHSD 2022 dated 03.01.2023 refused to renew such licence in favour of the said partnership firm and in the said memo the respondent authority directed the appellant/writ petitioner to submit application for renewal of the licence of the petrol pump in favour of the aforementioned partnership firm under the signature of all the partners by 31.01.2023.
5. The appellant, under cover of his letter dated 24.02.2023, made a representation to the respondent authority for renewal of the licence of the aforementioned petrol pump in favour of the said partnership firm. Alleging in-action on the part of the respondent no.5 to consider such representation, the aforementioned writ petition was filed.
6. While passing the impugned order the Learned Single Bench found that the dispute raised in the said petition being WPA No. 1206 of 2023 is practically a partnership dispute between the present appellant and the private respondents and therefore whether or not the present appellant has the right to apply for renewal of licence on his own and single handedly is to be decided by the Arbitral Tribunal. Based on the aforementioned finding, the Learned Single Bench passed the impugned order dismissing the said writ petition.
7. Mr. Ray, Learned advocate for the writ petitioner/ appellant, in course of his submission, at the very outset drew attention of this Court to Annexure P-18 of the stay application being a photocopy of the West Bengal Motors Spirit and High Speed Diesel (Licensing an
