IMPORTANT POINT
A legal heir of a deceased partner can seek interim relief under the Arbitration & Conciliation Act, 1996 to protect partnership assets, even in the face of claims of dissolution due to the partner's death.

JUDGMENT :

Pushpendra Singh Bhati, J.

1. This Civil Miscellaneous Appeal has been preferred under Section 37 of the Arbitration & Conciliation Act, 1996 read with Section 13 of the Commercial Courts Act, 2015 claiming the following reliefs :

“It is, therefore, prayed that this appeal of the appellants may kindly be allowed with costs and the impugned order dated 2.5.2023 may kindly be set aside and further the application of the appellant under Section 9 of the Arbitration & Conciliation Act, 1996 may kindly be rejected and/or in the alternate, the respondent may kindly be directed not to raise any hurdle or obstacle in running peacefully the business of partnership firm

Any other order or directions, which this Hon’ble Court deem just and proper.”

2. Briefs facts of the case, as presented before this Court by the learned counsel for the appellants, are that a partnership deed was executed by one Shri Rakesh Jain (since deceased), Shri Mukesh Kumar (since deceased) Jain and Smt. Mishri Devi in the year 1995 to start a business (Firm) in the name and style “M/s. Shivcharandas and Sons”, and in the partnership deed itself, it was decided that in the event of demise of any of the partners, the said Firm can be run by the legal heirs of that partner(s).

2.1. Subsequently, after the death of Smt. Mishri Devi, a new partnership deed was executed on 13.04.2015, and thereafter, on the death of Shri Mukesh Kumar Jain on 08.08.2020, another partnership deed was executed between Shri Sidharth Jain (the legal heir of deceased Mukesh Kumar) and Shri Rakesh Jain on 09.08.2020, whereafter in the year 2021, upon the demise of Shri Rakesh Jain the present respondent Shalu Jain (legal heir of Late Shri Rakesh Kumar) requested for execution of a new partnership deed from Shri Sidhartha Jain and sent an intimation for the same on 19.05.2021.

2.2. The respondent, on 28.09.2022, a legal notice was sent to appoint Mr. C.S. Kotwani as an Arbitrator to the appellant, as per the terms and conditions of the partnership, to settle the dispute, if any arises, through Arbitration. Thereafter, since the appellants had refused to the above proposition of the respondent, subsequently, an application under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as “Act of 1996”) was filed by the respondent and the same was objected by filing a preliminary objection by the appellants before the learned Commercial Court No. 1, Jodhpur Metropolitan with the contention that as per the Partnership Act, 1932 the partnership deed between the present appellant no.1 and Late Shri Rakesh Jain stood terminated and the partnership dissolved upon death of Shri Rakesh Jain and the respondent, being a third party, had no right whatsoever.

2.3. However, the learned Commercial Court allowed the application under Section 9 of the Act of 1996, vide the order dated 02.05.2023 with a direction not to make any disbursement, change the nature or sale of properties of partnership Firm. Thus, being aggrieved of the impugned order, the present appeal has been preferred.

3. Learned counsel for the appellants submitted that the learned Commercial Court erred in not taking into consideration the fact that the respondent is not a party to the arbitration agreement/partnership deed, that is being relied upon, and thus, there exists no dispute between the appellants and the respondent.

3.1. It was further submitted that the agreement relied upon by the respondent is one that has been executed between Late Shri Rakesh Kumar Jain, Late Shri Mukesh Kumar Jain and Smt. Mishri Devi, whereafter a new partnership deed was entered into between the appellants and Late Shri Rakesh Jain on 02.09.2020, thus as the respondent was not a party to the agreement hence she could not have sought the relief of application under Section 9 of the Act of 1996.

3.2. Learned counsel further placed reliance on Clause 14 of the Partnership Deed dated 09.08.2020 wherein prefixes such as “shall”, “will” or “