R.DEVDAS J., (ORAL):

The first petitioner is a registered partnership firm of which

the petitioners No.2 and 3 were the partners. In fact, the

petitioners No.2 and 3 are husband and wife. During the course of

these proceedings the husband Sri Steve passed away. It is

therefore sought to be contended at the hands of the learned

counsel for the respondent who had entered into an agreement

with the partnership firm that since partnership firm which had only

two partners is now left with only a single partner, the partnership

firm is no more a legal entity in the eye of law. It is therefore

sought to be contended that the writ petition cannot proceed any

further to redress the grievance of the partnership firm.

However, learned counsel Sri K.L. Patil has drawn attention

of this Court to a decision of the apex Court in the case of Ravi

Prakash Goel Vs. Chandra Prakash Goel and Ors. reported in

AIR 2007 SC 1517 and contends that the consequences of the

death of a partner of a partnership firm and the rights of such

partnership firm vis-à-vis the other party with whom the partnership

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firm had entered into an agreement which contains an arbitral

clause, has been considered by the Hon’ble Apex Court and it has

been held that when a partner dies and the partnership comes to

an end it is not only right but also the duty of the surviving partner

to realize the assets for the purpose of winding up of the

partnership firm including payment of partnership debts.

This Court finds that the Hon’ble Apex Court has in fact

considered the consequence of one of the two partners of a

partnership firm dying during the course of proceedings between

the partnership firm and of third party. The Hon’ble Apex Court has

considered the provisions contained in Sec. 40 of the Arbitration

Act and has held that it is clear from Sec. 40 of the Arbitration Act

that an arbitration agreement is not discharged by the death of any

party thereto and on such death it is enforceable by or against the

legal representatives of the deceased, nor is the authority of the

arbitrator revoked by the death of the party appointing him, subject

to the operation of any law by virtue of which the death of a person

extinguishing the right of action of that person. Further, the

definition of the word “legal representative” as defined in Sec.

2(1)(g) of the Arbitration Act was also considered and it was held

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that the definition of “legal representative” becomes necessary

because such representatives are bound by and also entitled to

enforce an arbitration agreement. Reading the said definition along

with Sec. 40, it was held that Sec. 40 clearly says that an

arbitration agreement is not discharged by the death of a party.

The agreement remains enforceable by or against the legal

representatives of the deceased. It was therefore opined that a

person who has the right to represent the estate of deceased

person occupies the status of a legal person. Sec. 35 of the 1996

Act which imparts the death of finality to an arbitral award says that

the award shall have binding effect on the parties and persons

claiming under them. It was further held that persons claiming

under the rights of a deceased person or personal representative of

the deceased party have right to enforce the award and are also

bound by it.

4.

Having regard to the judgment of the Hon’ble Apex Court,

this Court has no hesitation to hold that the objections raised at the

hands of the learned counsel for the respondent that the

partnership firm is no more a legal entity and therefore it should be

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non suited on that ground, is required to be rejected and is

accordingly rejected.

5.

It is not disputed that the agreement for construction of

apartment (flats) dated 26.11.2010 contains an arbitration clause at

paragraph no. 14 which reads as follows:

“14) If any difference of opinion in implementation of the

scheme arises it should be settled amicably and even if the

problem is not solved the same may b