1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO.37 OF 2008 Lata Tauro ).. Applicant Versus Adelia Castelino ).. Respondent Mr. A.G. Damle i/b M/s.Puranik & Co. for the Applicant. Mr. S.G. Bhandary i/b Bhandary & Bhandary for the Respondent. CORAM : J.N. PATEL, ACTING C.J. DATED : 15TH JANUARY 2010 P.C. Heard the learned Counsel appearing for the parties. 2. This Application has been filed by one of the Partners to refer the dispute to an Arbitrator on the basis of an agreement between the parties as recorded in the Deed of Dissolution entered on 1st April 2001. 3. It is the case of the Applicant that there was a Deed of Partnership executed between the parties on 17th March 1993 to conduct a business in the name and style of “International Computer Enterprises” which was engaged in the business of software 2 development, implementation and maintenance and software for data processing and other allied jobs and/or business assignments. The partnership was partnership at Will and it was specifically agreed that all disputes, differences, claim and questions whatsoever which shall arise either during the partnership or afterwards between the partners or their respective representatives of any other partners, shall be referred to arbitration in accordance with and subject to the provisions of the Arbitration Act, 1940 (now can be read as under the Arbitration and Conciliation Act, 1996). 4. I am not much concerned with the business of the firm and the various clauses by which the partners were bound in conducting their business and, therefore, they are not referred in this order. It so happened that there was a dispute between the partners due to certain conduct in conducting the business of the firm and, therefore, they had dissolved the firm and entered into a Deed of Dissolution on 1st April 2001 wherein they had agreed in clause I of the Covenant as under :- “I. In the event of any dispute arising between the Parties in the course of Dissolution, the same will be referred to the arbitration of a common arbitrator, if agreed upon or two or more arbitrators, each party to the dispute appointing his arbitration, and the arbitration will be governed by the Arbitration Act, 1940.” 3 5. It is the contention of the learned Counsel appearing for the Applicant that as there is a dispute between the partners in respect of dissolution of the firm, matter should be referred to Arbitration by virtue of the agreement between the partners in the Deed of Partnership dated 17th March 1993 and also in the Deed of Dissolution and, therefore, the Application should be allowed. 6. The Respondent on notice submitted that with the dissolution of the partnership, the clause in the Deed of Partnership dated 17th March 1993 cease to exist and the partners have expressly agreed by Deed of Dissolution to dissolve the said partnership firm and close the business with effect from 1st April 2001 and accordingly it was agreed that if there is a dispute between the parties during the course of the dissolution, the same shall be referred for arbitration. It is submitted that as the partnership stands dissolved, the question of referring the dispute arising between the parties in the course of dissolution does not arise and that the Applicant, is aggrieved by the dissolution, may take recourse to the remedy available to her under the law but cannot insist upon for referring the same for arbitration and, therefore, the application deserves to be dismissed. 4 7. Clause 7 of the Arbitration and Conciliation Act, 1996 clearly provides and means that an agreement by the parties to submit to arbitration all or certain disputes which necessarily or mandatorily requires appointment of an Arbitrator/Arbitrators and does not cover a case where the parties can enter into a specific agreement and, therefore, what it contemplates is that an agreement to submit to arbitration is a pre-condition before parties can approach the Chief Justice or any person designated under Section 11(6) of the Arbitration and Conciliation Act, 1996. In the present case, therefore, the Deed of Dissolution is concerned, it does provide that in the event of any dispute arising between the parties in the course of dissolution the same will be referred to arbitration of a common Arbitrator and spells out the scheme of appointment of Arbitrator. Therefore, it is clear that the parties have agreed that if there is any dispute between the parties in the course of dissolution, then only it will be referred to arbitration of common Arbitrator. It is not disputed that the dissolution between the parties is complete and accounts have been settled and, therefore, if at all the Applicant is aggrieved in any manner whatsoever, she has got every right to seek remedy available to her under the law. Hence, Arbitration Application stands rejected. No order as to costs. ACTING CHIEF JUSTICE