Mukta Gupta, J.

1. The present Appeal arises out of the Impugned Order dated 1.9.2009 whereby the Appellant's Petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter `A&C' Act) was dismissed. By the said Petition the Petitioner had prayed for restraining the Respondents from encashing or appropriating the amount of Rs. 45 lakhs deposited by the DDA with the Registry of this Court and also a direction to the Respondent No. 8 that is the Punjab National Bank from restraining it from making any payment from the Account No. 036002100012593 in Punjab National Bank, Sarvodaya Enclave Branch.

2. The facts relevant to the present controversy are that the Petitioner was a partner of 20% share in M/s. Prem Chand Sharma & Co. carrying on the business of construction vide partnership deed executed between the Petitioner and his brothers initially on 9th October,1978 and subsequently renewed on 2nd April, 1980. In view of the ongoing construction works the disputes were referred to the Arbitrator and in one such reference an Award was passed in favour of the partnership firm, that is, the Respondent No. 1 by the Arbitrator on 16th April, 1989 and subsequently made a rule of the Court vide Order dated 8th November, 2005. On an Execution Petition being filed by the partnership firm through one of its partners at that time, the Petitioner filed an Application under Section 151 CPC praying to restrain the DDA from disbursing the decreetal amount to Sh. P.C. Sharma and to handover to the Appellant who executed the agreement and the Award. This Application of the Appellant was dismissed in default and on an Appeal being filed the same was dismissed as withdrawn with liberty in view of the observation of the Division Bench of this Court that if there were inter se disputes between the partners, the proper course for the Appellant was to file independent proceeding/suit relating to the partnership and obtain appropriate orders in the said suit to ensure that money is not appropriated by wrong persons. It is thereafter that the Petitioner filed an Application under Section 9 of the A&C Act seeking enforcement of the Arbitration clause in the partnership deed dated 2nd April, 1988.

3. Learned counsel for the Appellant contends that the Application of the Appellant in the Execution Petition was wrongly dismissed by the learned Single Judge as his Application on 23rd February, 2007 was adjourned to 8th May, 2007 which was also the date fixed for the Execution Petition. However, the Respondent herein surreptitiously moved an Application for early hearing of the matter, of which no notice was given to the Appellant and got the matter preponed to 3rd April, 2007. Though the Application ought not to have been listed on 3rd April, 2007 as the date fixed in the Application was 8th May, 2007, however, the same was listed and dismissed as neither the Appellant nor his counsel were present. However, this issue cannot be agitated in the present Appeal as against the said grievance the Appellant had already availed his remedy vide EFA (OS) 12/2007 wherein in view of the above mentioned observations of the Division Bench of this Court the Appellant withdrew the Appeal on 28th May, 2007 with liberty to take appropriate remedy in accordance with law.

4. The next grievance of the Appellant is that the so-called retirement deed though signed was not acted upon in view of the fact that it was to come into force on the payment of the shares of the Appellant by the Respondent No. 1. That contingency having not been complied with, the retirement deed dated 1st April, 1982 is a nonest document. The relevant clauses of the retirement deed state:-

"5. That the outstanding amounts of the parties of first part shall be paid by the parties of the second part within 12 months of this deed or such other time as may be mutually agreed upon, in cash or kind without any interest.

6. That in consideration of the sum determined to be paid to the retiring parties