IN THE HIGH COURT OF BOMBAY AT GOA APPLN. FOR APPOINTMENT OF ARBITRATOR NO. 13 OF 2009 IGNATIUS TONY PEREIRA ... Applicant Versus MR. PIFRAN SANJIVAN FERNANDES ... Respondent Mr. C. Mascarenhas, Advocate for the Applicant. Mr. Mahesh S. Sonak, Advocate with Mr. P. Rao and Mr. J. P. Supekar, Advocates for the Respondent. Coram:- S. J. VAZIFDAR, J. Date:- 23rd April, 2010 P.C. This is an application for appointment of an Arbitrator under the Arbitration and Conciliation Act, 1996. 2. The applicant and the respondent carry on business as partners on the terms and conditions contained in a Deed of Partnership dated 30.03.1996. Clause 14 of the Deed of Partnership to Arbitration, reads as under : "14. That in case of dispute or serious difference of opinion between the partners, they shall not resort to litigation but shall refer the matter for arbitra- tion as per the provisions of the Indian Arbitration Act and that the award given by the Arbitrator/s shall final and binding on the parties." 3. Clause 6 of the Deed of Partnership reads as under : "6. That the partnership shall be at will subject to three month's notice in writing by the retiring part- ner to the other partner, but that, in case of pend- ing works undertaken, the notice period shall be con- sidered only after completing of such work except in the case of a dissolution by mutual consent." 4. The partnership firm constructed various units. The firm sold all but 21 units. These 21 units were retained by the firm. Rent-back agreements were entered into between the firm and the owners of 13 units which had been sold by the firm. According to the applicant, the rent-back transactions were entered into for the benefit of the firm. 5. By a notice dated 10.09.2008, the applicant raised various disputes including that the Respondent was attempting to market the rooms of the resort managed by the firm in the name of another organization controlled by him and/or his agents. The applicant contended that it is only the firm that owns the exclusive rights to use and occupy the said rooms at the resort atleast till the year 2010. There were several other allegations. In view thereof, the applicant terminated the said partnership. The letter is clearly a notice of dissolution of the firm. The applicant called upon the respondent to agree to the name of an Arbitrator and to refer all the disputes and differences including the final settlement of accounts to such Arbitrator. 6. The respondent by a letter dated 08.10.2008, denied the allegation. The Respondent stated that the Petitioner had not specified matters of dispute and, therefore, called upon the applicant to inform him about the purported disputes. 7. The applicant, by his letter dated 02.12.2008, crystallized some of the main issues including as to whether the partnership firm stands dissolved, the determination of the assets and liabilities of the firm as on the date of the dissolution and in the manner in which the same are to be divided or apportioned between the partners. The applicant also suggested the names of two Arbitrators. 8. The Respondent by letter dated 19.12.2008, did not agree to the disputes and differences being referred to the said Arbitrators and suggested another name. 9. Mr. Sonak, learned Counsel appearing on behalf of the Respondent, submitted that the Petitioner had not complied with the provisions of clause 2(a) of the Scheme which required the applicant to file along with the application under Section 11, the original Arbitration Agreement or a duly certified copy thereof. 10. The applicant has furnished a duly certified copy of the initial Arbitration Agreement. Mr. Sonak, however, relies upon the applicant's admission that the Partnership Deed was amended from time to time. That, however, makes no difference in the facts of this case. The Arbitration Agreement itself admittedly remained the same. There was no amendment to the Arbitration Agreement. Some of clauses in the Partnership Deed such as the assessment years and the salaries were modified. Thus, the Arbitration Agrement itself remained the same. In view thereof, the provisions of Clause 2(a) have been complied with. The submission is, therefore, rejected. 11. Mr. Sonak submitted that the applicant has not complied with clause 2(f) of the Scheme which requires a brief written statement describing the general nature of the dispute and the points. 12. The submission is unfounded. I have already referred to the contents of the letters addressed by the Applicant. The same have been reiterated in the application. The applicant has for instance referred to the Deed of Partnership, the dissolution thereof including the notices of dissolution as well as the disputes. 13. Mr. Sonak submitted that even the reliefs claimed have not been mentioned. 14. This submission is also unfounded. Firstly, the reliefs based on a dissolution of a partnership at will are obvious. In any event, in the above correspondence, the applicant has stated that the final settlement of accounts requires determination in arbitration. That is the main/essential relief in an action for dissolution and accounts. The doubt, if any, in this regard is removed by the contents of the applicant's letter dated 02.12.2008, wherein he crystallized some of the issues including as to whether the firm stands dissolved, the determination of the assets and liabilities of the firm and the manner in which the same are to be divided or apportioned between the parties. The submission is, therefore, rejected. 15. Mr. Sonak submitted that clause 2(h) of the Scheme has not been complied with by the applicant. He submitted that the applicant had not filed an affidavit supported by the relevant documents to the effect that the condition to be satisfied under sub-section 5 of Section 11 of the Act, had been satisfied. 16. The applicant has filed an affidavit dated 04.05.2009, confirming on solemn affirmation that the contents of the application are true to his knowledge. He, therefore, incorporated the submissions contained in the application in this affidavit. Nothing more was required. The submission is, therefore, rejected. 17. Mr. Sonak then submitted that under Clause 7 of the Scheme, notices ought to be given to the affected persons. I do not agree. 18. The affected persons, according to Mr. Sonak, are the purchasers of the 13 units who had entered into rent-back agreements. According to the applicant, the rent back agreements enure to the benefit of the firm. According to the applicant, the rent-back agreements expired in the year 2005 but were extended for a further period of five years which comes to an end on 30th April 2010. According to the Respondent, after the initial term of five years had expired, the rent-back agreements had been entered into not between the owners and the firm but between the owners and the respondent. 19. The rival contentions will naturally fall for the consideration of the learned Arbitrator while taking accounts. This is not an aspect which requires consideration in the present application. On the applicant's own case, the owners of these units are not concerned with the firm. The said agreement in any case, according to the applicant, came to an end in less than a week from today. The said owners are therefore not affected by any stretch of imagination. 20. That the owners of these units have filed proceedings against the firm for not having provided all the amenities is totally irrelevant to the present application. These are disputes between the owners and the firm which cannot possibly affect the partners' rights to have the disputes between themselves adjudicated in arbitration. The parties are always at liberty to make an appropriate application for defending the firm in such suits. 21. The letter dated 10.09.2008 is certainly a notice of dissolution. Whether the firm stands dissolved as a result thereof or otherwise or whether the applicant is entitled to have the firm dissolved is another matter which will be decided by the Arbitrator. 22. In the circumstances, the application is allowed as prayed. At the request of the parties, Hon'ble Shri G. D. Kamat, Retired Chief Justice of the Gujarat High Court, is appointed as the Arbitrator. S. J. VAZIFDAR, J. arp/*