Effect of the conduct of the parties.

GOKULAKRISHNAN

The applicant in Appln. No. 1420 of 1982 in C.S. 547 of 1982 and 1421 of 1984 in C.S. 577 of 1982 is the appellant in both the appeals.

2. The short facts of the case are as follows : One Usha Kumari Betala has filed C.S. 547 of 1982 on the file of this Court against the 18th defendants of whom the appellant herein is the first defendant, for a declaration that the partnership firm Sapphire stands dissolved from 27-7-1982, and for directing the defendants to render true and proper accounts of the business of the partnership firm Sapphire till the firm is wound up and also for directing the taking of accounts of the partnership business, determining the valuation of the properties and assets including the goodwill of the firm Sapphire, determination and distribution of the liabilities to creditors and net proceeds amongst the partners. The 18th defendant in C.S. 547 of 1982 filed C.S. 577 of 1982, on the file of this Court against 20 defendants, of whom the appellant herein is the second defendant, for directing the accounts of the dissolved firm Sapphire taken till 27-7-1972, and the shares of the profit and capital of the plaintiff be paid to him. In this suit plaintiff in C.S. 547 of 1982 is the 19th defendant. In both the suits it is alleged that the appellant and defendants 2 and 3 in C.S. 547 of 1982 have committed misfeasance and malfeasance and various instances have been catalogued in the plaints regarding the mismanagement of defendants 1 to 3 in C.S. 547 of 1982, who are defendants 2 to 4 in C.S. 577 of 1982. The respective plaintiffs in both the suits filed applications for the appointment of a Receiver to take charge of the affairs of the firm Sapphire and its properties viz., three cinema theatres at No. 614 Mount Road, Madras, (1) Saffire (a Veecumsee theatre), (2) Veecumsee Blue Diamond; and (3) Veecumsees Emerald, and the properties and other business carried on in the premises. The Receiver application in C.S. 547 of 1982 is Appln. No. 3784 of 1982 while the Receiver application in C.S. 577 of 1982 is Appln. No. 4177 of 1982. The appellant filed a counter-affidavit in Appln. no. 3704 of 1982, inter alia, alleging that there is a provision in the partnership deed for referring the dispute to arbitration, that without resorting to arbitration proceedings, the suit filed is not maintainable, that the allegations contained in the plaint are not admitted and that leave may be granted to file a detailed written statement setting out his defence. In the counter-affidavit filed by the appellant to Appln. No. 4177 of 1982, he has inter alia alleged that the partnership deed contains a provision for arbitration, that without resorting to arbitration proceedings the suit filed is not maintainable, that the allegations contained in the plaint are not admitted and that leave may be granted to file a detailed written statement setting out his defence.

3. The appellant then filed Appln. No. 1420 of 1982 in C.S. 546 of 1982, praying for the stay of the suit and all proceedings therein in accordance with S.34 of the Arbitration Act. A similar petition in Appln. No. 1221 of 1982 was also filed by the appellant in C.S. 577 of 1982. In these applications, the appellant has referred to clause 19 of the partnership deed dt. 1-11-1969 and submitted that the matter has to be referred to the Arbitrator. The appellant has further stated that he is ready and willing to have the disputes settled in arbitration proceedings, that he is prepared to do all within his powers to have the arbitration proceedings commenced and completed expeditiously and that he has always been ready and willing to assist the Arbitrator by producing all records, accounts, bank statements, correspondence, etc.

4. In the common counter-affidavit filed by Ketan A. Shah, it is alleged that the appellant was served with suit summons on 26-12-1983, that he should have filed his written statement on or before 8-1-1984, that the present applicatio