1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. ARBITRATION PETITION NO.53 OF 2008 Ajay Ramesh Shah. ...Petitioner. Vs. Pramod P. Shah & Ors. ...Respondents. .... Mr. N.N. Vaishnava for the Petitioner. Mr.Snehal Shah with Mr. Satyen Vora i/b. M/s. Markand Gandhi & Co. for Respondent No.1. Mr. I.A. Bagadia for Respondent No.2. Mr. D.D. Madon, Senior Advocate with Ms.Sheetal Shah i/b. Mehta & Girdharlal for Respondent Nos.3 and 4. Mr. Kiran Jain with Ms.Neeta Solanki for Respondent Nos.7 to 11. ..... CORAM :DR.D.Y.CHANDRACHUD, J. February 15, 2008. P.C.: The claim of the Petitioner in the Arbitration Petition is that his mother was a partner of the firm in pursuance of a Deed of Partnership dated 11th September 1978. The Petitioner' s mother expired on 9th September 1995. The case of the Petitioner is that the business of the partnership consisted of the collection of rent, and of 2 the management and maintenance of six tenanted buildings situated at Cadestral Survey No.1/938 of Bhuleshwar Division at Kalbadevi Road, Mumbai. In paragraph 5 of the Arbitration Petition, it has been averred that the buildings consisted of commercial and residential premises and in respect of the transfer of tenancies, the partnership firm used to receive premium which was the main income. The premium was allegedly received in cash without being accounted for in the Books of Account. In paragraph 9, the Petitioner claims that after the death of his mother, the partnership was “continued orally between the Petitioner and the Respondents on the same terms and conditions as provided in the Deed of Partnership dated 11th September 1978”. Again in paragraph 12, the Petitioner has set up the case that on the death of his mother, the Petitioner and Respondent No.5 “are orally admitted as partners of the suit partnership firm” in her place. An arbitration clause (Clause 17) was contained in the original Deed of Partnership. 3 The defence to the Arbitration Petition is two fold. Firstly, it has been urged that if the claim of the Petitioner, as would appear in paragraphs 9 and 12 of the Arbitration Petition, is based on an oral agreement admitting the Petitioner as a partner, this Court would have no jurisdiction under Section 9 of the Arbitration and Conciliation Act, 1996, because an agreement to arbitrate is required to be in writing under Section 7(3) of the Act. The second defence is that if the Petitioner seeks to invoke the provisions of Section 40 of the Arbitration and Conciliation Act, 1996, as legal representative of his now deceased mother, the invocation of arbitration would be barred since the claim has not been raised within a period of three years from the date of death. Article 137 of the Schedule to the Limitation Act, it is submitted, would apply and no steps were taken by the Petitioner within a period of three years of the date when the right to apply accrued. Counsel appearing on behalf of the Petitioner has, during 4 the course of the hearing of the Arbitration Petition, sought leave of the Court to withdraw the Arbitration Petition, since the Petitioner intends to institute a suit for the espousal of his claim. Mr.Madon, Learned Senior Counsel urges that in the event of a suit being instituted, his clients reserve their right to assert that it is barred by limitation and raise all defences available. In view of this submission, it is made clear that should the Petitioner seek recourse to the remedy of a suit for the espousal of his rights and claims, nothing contained in this order shall be construed as any expression of opinion on the rights and contentions of parties, including the question of limitation. The Arbitration Petition is accordingly dismissed as withdrawn. .....