*1* 904-43-10 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 43 OF 2010 Hemant D. Shah & Another ..Applicants. v/s. Chitranjan D. Shah & Another ..Respondents. Mr. Riyaz Chagla with Mr. H.K.Sudhakara i/b. Khaitan & Co., for the Applicants. Mr. Vineet Naik, Counsel with Mr. G.C.Mohanty i/b. M/s. Mohanty & Associates, for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 27 th JANUARY, 2011. P.C. :- 1 This is an application under section 11 of the Arbitration and Conciliation Act, 1996. 2 The Applicants’ case is that the two Applicants and two Respondents were the only partners who carried on business in the firm name and style of M/s. Prospective Traders. The firm was constituted originally on 2nd April, 1977. It was re-constituted on the terms and conditions contained in a Deed of Partnership dated 9.12.1985. Clause 16 thereof contains an arbitration agreement. It includes a reference of the *2* 904-43-10 disputes and differences between the parties during continuance of the partnership firm or at any time or times thereafter. 3 Disputes and differences arose between the parties which are not necessary to enumerate. The only defence to this application is that the claim sought to be raised by the Applicant is state and does not survive. The submission is based on an alleged writing dated 3rd July, 1995 by which the Applicant allegedly retired from the firm. According to the Respondent, thereafter, various third parties rights have been created by inducting new partners in the said firm. 4 I am not inclined to accept Mr. Naik’s submission that this Court ought to record the evidence in this regard and decide this issue. The question, inter alia, as to the genuineness of the document dated 3rd July, 1995, cannot be decided without further evidence. The affidavit on record by itself does not answer this issue. The document surfaced for the first time on 24th May, 2006 in proceedings filed before the D.R.T. The notice of dissolution of the partnership was issued by Applicants on 17th June, 2006. Even assuming that I have power to decide the question under section 11 of the Arbitration and Conciliation Act, 1996, in the facts and circumstances of the case, I am not inclined to do so. The disputes must be referred to the Arbitrator in accordance with clause 16 of the partnership deed dated 9th December, 1985. 5 Needless to say that any award that may be passed cannot and will not affect the rights of third parties including the alleged new partners in any manner whatsoever. Mr. Chhagla, learned counsel for the Applicant does not dispute the same either. *3* 904-43-10 6 Without prejudice to all the rights and contentions including the Respondent’s contention, that this application ought not to be allowed, both the counsel states that they would prefer the reference to a sole arbitrator rather than a panel of three Arbitrators. 7 The arbitration application is, therefore, disposed of by appointing Mrs. Justice Sujata M.Manohar – Retired Judge of the Supreme Court of India as a sole arbitrator. This is without prejudice to the Respondent’s contention that this application ought to be dismissed.