(July 1, 2001) 2001 (TLS)125505

2001-AD (Del)-5-1107

RAJINDER SINGH Vs. Kartar Singh

SHARDA AGGARWAL

( 1 ) THE petitioners have moved two applications for interim relief. IA. No. 11741/99 is an application under Section 9 of the Arbitration and Conciliation Act,1996 (hereinafter referred to as the Act) read with Order 40 Rule 1 Civil Procedure Code for appointment of a court receiver to take possession of the entire assets of the partnership M/s Kalyan Cinema and IA. No. 11736/99 is under Section 9 of the Act read with Order 39 Rules 1 and 2 Civil Procedure Code for grant of interim injunction restraining the respondents from running the business of Kalyan Cinema or any other similar business by using the name or property of the. dissolved partnership firm.

( 2 ) A short background of the facts is necessary. The applicants are the legal heirs of sh. Kanhai Ram, who was a partner alongwith the respondents having 31. 66% share in partnership firm, M/s Kalyan Cinema. As he was not satisfied with the running of the business of the firm, he filed a petition under Section 20 of the Indian Arbitration Act,1940 which was registered as Suit No. 1918a/95 for appointment of an arbitrator in terms of the arbitration clause contained in the partnership deed alleging that disputes had arisen with regard to the business of the cinema and its canteen and cycle stand. He had claimed rendition of accounts of the business w. e. f. 1986 and claimed his share.

( 3 ) ALONG with the main petition Kanhai Ram had also moved an application for appointing him a receiver (IA. 8369/95 in S. No. 1918/95), which was allowed vide orders dated 4/01/1996 and Kanhai Ram was appointed a receiver of the canteen and the cycle stand. Later on, Kanhai Ram had also moved an application for amendment (IA. 11 any payment exceeding Rs. 500/- except by cheque and for directions to the respondents to deposit the daily proceeds of the cinema in the bank account of the firm.

( 4 ) THE respondents thereafter moved an application under Order 7 Rule 11 Civil Procedure Code for rejection of the petition on the ground that the firm being not registered, the petition/suit was not maintainable. The learned Single Judge vide his orders dated 3/04/1998 allowed the respondents application and dismissed the suit in view of the bar of Section 69 of the Indian partnership Act, 1932 (hereinafter referred to as the Partnership Act ). The other pending interlocutory applications were, accordingly, dismissed. An appeal being FAO (OS) No. 97/98 was filed against the said order. Kanhai Ram moved two applications in the appeal. One for appointing him a receiver (CM. 1443/98) of the canteen and cycle stand and the other for interim injunction (CM. 1445/98), which were disposed of vide a common order dated 2 2/10/1998. Kanhai Ram was appointed a receiver of the canteen and cycle stand subject to his depositing in the bank account of the partnership firm every month in advance a sum of rs. 30,000/- and possession thereof was ordered to be handed over to him w. e. f. 1/11/1998. On the application for interim injunction relating to the income of the main cinema business, the following orders were passed by the Division Bench:-

"having regard to the facts and circumstances of the case, we direct the respondents not to make cash payment of any expense exceeding Rs. 1,000/ -. We further direct the respondents to deposit in the bank account of the partnership firm whatever cash amounts they presently have within 48 hours. The respondents are further directed to deposit in the bank account of partnership the daily collections of the cinema, on the next working day of the bank. "

( 5 ) KANHAI Ram died on 5/11/1999. Being the legal heirs of Kanhai Ram, the applicants filed the present petition under Section 8 and 11 of the Act for appointment of an arbitrator to adjudicate the disputes and to go into the accounts of the dissolved. firm alleging that the firm being partnership at Will, on the d