arbp502-916.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.502 OF 2010 ALONGWITH ARBITRATION PETITION NO.916 OF 2010 Pravinchandra J. Patel .. Petitioner Versus Bhagwandas J. Patel & Ors .. Respondents Mr.S.U.Kamdar, Sr.Advocate, Mr.Farhan Dubash, Ms.Harshal Manik, Ms.Deepali Thakor, Ms.Pooja Patil i/by Rustamji & Ginwala for the petitioner. Mr.Mahendra Ghelani a/w Mr.Pratik Shah i/by Law Charter for respondent Nos.1, 6 and 7. Mr.Salik Khan for respondent Nos.2 and 3. Mr.Shlesha Sheth i/by FZB & Associates for respondent Nos.4 and 5. CORAM: S.C.DHARMADHIKARI, J. DATE : 22nd FEBRUARY 2011 P.C. . These are petitions under section 9 of the Arbitration and Conciliation Act, 1996 seeking interim measures pending disposal arbp502-916.doc 2 of the arbitral reference. 2 The petitioner and the respondents are family members. A partnership firm in the name and style M/s.Vikram Builders was formed as evidenced according to the petitioner by a deed of partnership dated 22nd July 1981. It is stated that the Firm was reconstituted by the deed of partnership dated 21st January 1986 and the same is at will. The petitioner does not have the original of this deed but he has annexed a xerox copy. 3 Certain agreements between the partners inter-se have been referred to and as far as the property at Wadala, Mumbai is concerned, it is conceded that the same was subject matter of acquisition by the Bombay Municipal Corporation. The Collector determined the compensation but the parties were dissatisfied by the same and therefore, land acquisition reference was filed in this Court. That came to be decided on 30th/31st July 2007 and 4th August 2007. An appeal has been preferred by the Bombay Municipal Corporation and the said appeal is pending. In the meanwhile, the arbp502-916.doc 3 Bombay Municipal Corporation has deposited the compensation amount in this Court and it is stated that by order dated 17th December 2007 this Court has permitted the respondents in pending appeal to withdraw the amount. 4 The amounts are still lying and not withdrawn by the respondents. On instructions Mr.Ghelani appearing for the respondent Nos.1, 6 and 7 makes a statement that these respondents are not desirous of withdrawing the amount presently but if they are so desirous, they will give 48 hours advance notice to the petitioner’s advocate in that behalf. In the light of this statement which is recorded by this Court as without prejudice to the rights and contentions of the parties, there is no necessity of passing any interim measures as far as protecting the claim of the petitioner in compensation amount at this stage. 5 As far as property at Dhulia is concerned, the affidavits have been filed but Mr.Kamdar, learned senior counsel appearing on behalf of the petitioner has invited my attention to the order dated arbp502-916.doc 4 19th April 2010 and has submitted that self-same objections were raised at the time when this order came to be passed. No changed circumstances have been pointed out and therefore, this ad-interim order may be continued till the arbitral reference is disposed off. More so, when the petitioner has taken the necessary steps to have the arbitrator appointed and is ready and willing to commence the arbitral proceedings. He has submitted that with regard to the property at Nalanda, Goregaon, Mumbai is concerned, even that is covered by the order dated 19th April 2010. It is submitted that these very objections namely, on the grounds of limitation and that the petitioner is residing at Dhule and has not contributed any money or effort in the partnership business have been raised even when the order dated 19th April 2010 was passed. Nothing new has been pointed out so as to modify this order. For all these reasons, it is submitted that petitions be allowed and disposed off accordingly. 6 Mr.Ghelani appearing for respondent Nos.1, 6 and 7 on the other hand submits that the petitioner has not contributed anything in the form of either any money or efforts. In fact, he has arbp502-916.doc 5 not brought any contribution and the accounts of the firm do reflect a debit balance. The petitioner has acquiesced in disposal of the properties and this disposal has taken place 18 years ago. It is to the knowledge of the petitioner that the properties have been acquired by some of the partners and therefore, these partners are not any longer holding the same in their capacity as partners of the Firms. The partners are independent purchasers and therefore, their rights cannot be interfered with, particularly after 18 years of the alleged acts of the parties. For all these reasons, there is no prima facie case made out for grant of any interim reliefs nor is the balance of convenience in favour of the petitioner. In such circumstances, the petitioner is not entitled to any relief. 7 With the assistance of the counsel appearing for the parties, I have perused the order dated 19th April 2010. To the extent that the compensation amount which is lying in the Court is concerned, that records the submission of Mr.Ghelani made on instructions and reiterated today before me. In these circumstances, the ad-interim order recording the aforemade statement of arbp502-916.doc 6 Mr.Ghelani can safely be confirmed. Therefore, in terms of the statement made by Mr.Ghelani nothing further needs to be done as far as the claim of the petitioner in the compensation amount of Wadala property is concerned. 8 As far as the other properties/assets are concerned, this Court at the stage of ad-interim reliefs has dealt with self-same arguments as is clear from paras 2 and 3 of order dated 19th April 2010. In para 4, the argument that the partnership firm stood dissolved by notice dated 18th May 1992 has been considered and it has been observed that the same cannot be conclusively gone into and it is best left to the Arbitral Tribunal. In paras 4 and 5 the Court has after dealing with all the arguments, made an ad-interim order. 9 In my view, various pleas that have been considered by the Court while deciding the matter at ad-interim stage are reiterated before me. There is nothing which would warrant me to take a different view. Since any expression of opinion even at this prima facie stage is likely to prejudice the case of both sides before the arbp502-916.doc 7 Arbitral Tribunal, it would not be proper to go into the rival contentions in further details particularly because nothing has been pointed out which would enable me to vacate the ad-interim order. The same state of affairs are being continued. The petitioner is claiming his share as a partner in the assets and properties of the Firm. Whether the Firm subsists or stands dissolved and from what date, so also whether the petitioner can assert his right as a partner on the basis that the assets and properties which have been dealt with by the respondents constitute an asset of the partnership or not are issues which are best left to be decided by the Arbitral Tribunal. Any prima facie opinion based on the statements in affidavits is likely to prejudice both sides. In such circumstances and keeping open all contentions including on the plea of limitation, the petitions are disposed off in terms of the statement made above and the order dated 19th April 2010. There will be no order as to costs. (S.C.DHARMADHIKARI, J)