Back
IN THE HIGH COURT FOR STATE OF TELANGANA
A. RAJASEKHAR REDDY, J.
Ajay Tiwari – Appellant
Versus
Vijayendra Bajpai – Respondent
Arbitration Application No. 71 of 2018
Decided On : 19-06-2020
Arbitration and Conciliation Act, 1996 – Section – 3, 11, 11(6) - Registration Act - Section 17 - Indian Partnership Act - Section 69 - Appointment of arbitrator - Effect of non-registration - Purchased property from partnership funds and said property became property of partnership firm - Since the partnership deed is an unregistered, same cannot be relied upon for instituting the case - Whether the arbitration notice is valid notice for invoking arbitration against respondent - Whether the arbitration application is maintainable against respondent in respect of the claim for dissolution of partnership for rendition of accounts under an unregistered partnership deed - Whether pendency of application filed by applicant bars this application –
Finding of the court : Section 3 of Act show that a written communication is deemed to have been received, if it is sent to the addressee's last known place of business, habitual address or mailing address by registered letter or by any other means which provides a record of attempt to deliver it - The legislature thought it fit that separate provision for service of notice is to be enacted under Section 3 of the Act and has relaxed rigors of service of notice unlike sub-rule 5 of Rule 9 of Order V of CPC it requires proof of acknowledgment or any other receipt of due delivery of the summons, or drawing of a presumption of due service only where the summons were properly addressed but the acknowledgment was lost or mislaid or for any other reason was not received by the Court - Objection of the respondent that notice is not served and not followed the procedure, cannot be accepted - Non-registration of document will not come in the way of Courts for referring the dispute under the document or agreement to arbitration - If said document is not properly stamped, Court can act upon said document or enforce arbitration clause contained therein only after deficit duty and penalty is paid and said defect is cured - Non-registration of partnership deed under Section 69 of the Partnership Act, cannot bar this Court for referring the dispute to arbitration - The relief in the suit as well as relief sought in the present application is quite distinct and pertaining to different firms, as such, pendency of application cannot have any bearing in the present application. Since arbitration proceedings have been invoked after Arbitration and Conciliation (Amendment) Act, 2015 came into force, the only aspect that is required to be considered whether there exists an arbitration clause and invocation of the same and nothing more and nothing less and that aspect is to be considered by the arbitrator –
Result :Application allowed.
ORDER :
1. This Application is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator for adjudication of the disputes between the parties.
2. It is the case of the applicant that applicant and the respondent are related to each other and in view of such relation, they entered into a Partnership Deed dated 29.01.1991 for carrying on business of C&F Agency of various companies and the business shall be run in the name of M/s. Enterprises. Both of them are entitled to 50% of profits each. During the course of the business, the Partnership firm corroborated itself as C&F agent of M/s. Shell India Limited and M/s. Parry's Confectionary Ltd. with its operations at Kukatpally initially, which were subsequently shifted to Nacharam in the year 2005. They had taken a godown on lease at Nacharam admeasuring 13000 sq. ft. along with an open space situated at Sy. No. 71, plot No. 8-9-16/3, situated at Nacharam. Subsequently, they purchased the said property from the partnership funds and the said property became the property of the partnership firm. As per the mutual understanding between the partners, development and day-to-day management of the business was being looked after by the applicant and finances and accounts of the partnership firm was being looked after by the respondent. The respondent had been filing income tax returns of the firm under his signature representing the partnership firm and the applicant had no occasion to doubt the veracity of such returns filed by the respondent. During the course of the business of partnership firm, some portions of the go-down at Nacharam property were let out to different tenants and the respondent has been appropriating the rents. When questioned, the respondent failed to provide any information. The respondent, having control over the records of the firm and preventing the applicant from entering into the office premises and making it difficult for him to have daily access to his office premises in respect of their business. Disputes arose between the parties, since it is found that the respondent was acting against interest of the partnership firm and also against interest of the applicant in the partnership firm. The applicant got issued notice dated 29.03.2018 invoking arbitration clause 13 in the partnership deed, dated 29.01.1991. The said notice was returned with an endorsement as not claimed. Hence, the present application is filed.
3. The applicant also filed additional affidavit dated 19.03.2019 stating that himself and the respondent had always been residing adjacent to each other at Tilak Road, since the inception of the partnership business. Thereafter, himself and the respondent shifted their residence to Ramanthapur in two adjacent plots i.e. H. Nos. 3-14-12/F and 3-14-12/E respectively. As there are several disputes between the parties and they were not on good terms with each other, the applicant was not aware of the change of residence by the respondent, as the respondent's son still resides at the same address, that is the address on which Section 11 notice was sent and that on the date of sending notice under Section 11 of the Arbitration and Conciliation Act, the respondent was very much residing at the same address to which the notice was sent to and his son is still residing at the very same address.
4. Initially, the respondent filed counter affidavit on 12.09.2018 denying the averments in the affidavit filed in support of this application stating that the application is not maintainable as no procedure was followed as contemplated under the Act. It is asserted that the applicant by showing the residential address as resident of Raheja Apartments, Nacharam sent the notice of dissolving the partnership firm and also for appointment of arbitrator to an address where he was not residing and managed the postal authorities as if the respondent has not claimed the said notice and on that ground also, the application is liabl
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
