1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR MISC. CIVIL APPLICATION No. 474/2009 ( Mr. Girish Gangadhar Agrawal -: versus :- Mr. Anil Shriram Patil and others ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JANUARY 15, 2010. Heard Shri M.G. Sarda, learned counsel for the applicant, Shri S.C. Mehadia, learned counsel for non- applicant no.1 and Shri B.N. Mohta, learned counsel for non- applicant nos. 2, 3 and 5. The applicant – Girish has approached this Court invoking Arbitration clause as contained in agreement dated 11.03.2004. By that agreement Business, Good-will of the Firm M/s. Kiran Agencies was to be transferred to non- applicant no.1 Anil Patil and his nominees in due course. The first agreement in pursuance of this agreement dated 11.03.2004 is dated 01.04.2004, as envisaged in agreement dated 11.03.2004 itself. By this subsequent agreement dated 01.04.2004, Deed of Partnership is entered into between Girish and other partners of M/s. Kiran Agencies and between Anil Patil and his nominees. Thereafter, a Deed of 2 retirement dated 31.03.2005 has been entered into between the parties whereby the party no.6 thereto namely Girish stood retired. M/s. Kiran Agencies was business of HUF represented by Girish Agrawal. It is pertinent to note that arbitration clause contained is in first agreement dated 11.03.2004 and partnership deed dated 01.04.2004 only. Reference of dispute to arbitrator is opposed by Shri Mehadia and Shri Mohta, learned counsel appearing on behalf of the non-applicants, by contending that the alleged agreement dated 11.03.2004 is signed only by Girish and though below his signature he has stated that he was signing for himself and as power of attorney on behalf of other partners, such power of attorney has not been placed on record. They further state that though Anil Patil has signed the agreement for himself and his nominees, those nominees are not described in the agreement, and as they were not in existence on the said date, the agreement cannot bind the non-applicant nos. 2 to 5 who are claimed to be nominees of Anil Patil. It is further stated that the signatures of nominees i.e. non-applicant nos. 2 to 5 on this agreement dated 11.03.2004 are not proved. The dispute in relation to recovery of dues of M/s. Kiran Agencies is not covered by the Deed of retirement. It is contended tht, the partnership is entered into on 01.04.2004 as per the agreement dated 11.03.2004 and though, that partnership contained a Arbitration clause, ultimately in Deed of Retirement by which Girish retired on 31.03.2005 there is no arbitration clause. The learned counsel therefore, argue that the agreement dated 11.03.2004 has exhausted itself after the Deed of Retirement dated 31.03.2005 and claim of arbitration is not 3 legally sustainable. Lastly without prejudice to the above preliminary objections, it is contended that claims as made are time barred. Shri Sarda, learned counsel has pointed out that the partnership dated 01.04.2004 is fall out of agreement dated 11.03.2004 and the nominees who were inducted by Anil Patil as partners in M/s. Kiran Agencies have signed the agreement dated 11.03.2004 thereafter. With the assistance of the learned counsel, I have perused the relevant agreements. It is apparent that the agreement dated 11.03.2004 lays down modalities for transfer of business to M/s. Kiran Agencies (HUF) to Anil Patil. Anil Patil was given leave to add other partners and therefore, the agreement uses the word “and his nominees”. It is not in dispute that the applicant nos. 2 to 5 are his nominees. It appears that in that situation, the parties namely Girish and Anil have obtained signatures of non- applicant nos. 2 to 5 on the agreement dated 11.03.2004. In these circumstances, it is apparent that signature by Girish for himself and for other existing partners of M/s. Kiran Agencies cannot be challenged by non-applicants. They owe there title to this document. Perusal of the Deed of Retirement dated 31.03.2005 and its comparison with the agreement dated 11.03.2004 reveals that the Deed of retirement contained separate arrangement and clauses for recovery of dues of M/s. Kiran Agencies outstanding from market up to 31.03.2004. The conduct of the business in any mode and manner by the partnership firm of M/s. Anil Patil thereafter, therefore is not the subject matter of that Deed of 4 Retirement. The Deed of Retirement places entire responsibility for such recoveries upon the applicant Mr. Girish and the newly constituted Firm has assured of full cooperation. Said Deed of Retirement does not contain arbitration clause. Arrangement for recovery etc., prescribed in agreement dated 11.03.2004 and partnership agreement dated 01.04.2004 are only transitory in nature which reach finality in deed of retirement dated 31.03.2005. Girish was also a partner of new firm as per the deed dated 01.04.2004 and he has retired on 31.03.2005. It is therefore, obvious that this Deed of Retirement dated 31.03.2005 and the agreement dated 11.03.2004 are inconsistent and hence cannot stand together. In other words, the agreement dated 11.03.2004 cannot survive and stands exhausted in view of the retirement Deed dated 31.03.2005. In this view of the matter, it is apparent that there is no clause for arbitration available to applicant. Hence the application is misconceived. The same is dismissed with no order as to costs. JUDGE Rgd.