1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Misc. Civil Application No. 1108 of 2008 (Arbitration) (Smt. Ushakiran w/o N.K. Dwivedi Vs. Mr. Vilas s/o Damodar Bhansali & 2 ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. N.K. Dwivedi, Advocate, for the applicant. Mr. Hemant Chandurkar, Adv. for R-1 & 2. Mr. S.N. Kumar, Adv. for R-3. CORAM : Smt. Vasanti A. Naik, J. DATE : 10 th February, 2009 By the instant application, the applicant seeks appointment of an Arbitrator under the provisions of Section 11 of the Arbitration and Conciliation Act, 1996. The applicant also seeks an injunction restraining the respondents from creating fourth party interest in the suit property. It is the case of the applicant that the respondent no.3-Bank authorized the respondent no.1 some time in the month of August, 2006 for sale of the properties of the respondent no.2 and acting on such authority as an agent of the respondent no.1 by suppressing the fact of legal proceedings and 2 also by suppressing the fact that he was acting for the respondent no.2, the respondent no.1 entered into a partnership with the applicant and took 18 lakhs rupees and paid it to respondent no.3 on 26/10/2006. To avoid the litigation, the applicant claimed that he had requested the respondents to refund the admitted sum of Rs. 17 lakhs paid by the applicant to the respondent nos. 1 and 2. It is the case of the applicant that the respondent no.1 suppressed the fact that he was acting as an agent of the respondent no.3. It is stated in the application that certain proceedings were filed against the respondents, specially criminal writ petition, a criminal complaint and also certain application before the Debts Recovery Tribunal. The applicant has stated that she had requested the respondents for appointment of an Arbitrator as per the arbitration clause in the agreement, but the respondents had failed to appoint the same. Since the respondents, according to the applicant, were creating the fourth party interest in the suit property, the applicant also sought a temporary injunction restraining the respondents from creating the 3 fourth party interest in the suit property. The respondent nos. 1 and 2 filed their reply stating therein that the partnership never came into existence between the parties due to the default committed by the applicant. It is stated in the reply and it is also submitted on behalf of the respondent nos. 1 and 2 that they were ready and willing to refund the amount of Rs. 17 lakhs paid by the applicant to the respondent nos. 1 and 2 and are ready to pay the said amount to the applicant. According to the learned counsel for the respondent nos.1 and 2, the applicant has not made out any dispute between the parties in the miscellaneous civil application and the notice issued by the applicant also does not refer to any specific dispute between the parties. The learned counsel for the respondent nos. 1 and 2 has stated that the partnership has not come into existence in view of the failure on the part of the applicant to pay an amount of Rs. 20 lakhs before the specified date and hence, the miscellaneous civil application is not tenable. Shri S.N. Kumar, the learned counsel 4 for the respondent no.3, submitted that the applicant has wrongly joined the respondent no.3 as a party to the miscellaneous civil application. According to the learned counsel for the respondent no.3, the respondent no.3 is not a party either to the agreement or to any dispute, if any, between the applicant and the respondent nos. 1 and 2. According to the learned counsel for the respondent no.3, the respondent no.3 can also not be made a party to the arbitration proceedings as he is not a party to the agreement. The learned counsel for the respondent no.3 submitted that an application for deletion of the name of the respondent no.3 is also filed on record, which clearly discloses that the partnership, if any, between the applicant and the respondent nos. 1 and 2 was not entered into with the consent of the respondent no.3 and the respondent no.3 has no concern whatsoever with the dealings between the applicant and the respondent nos. 1 and 2. I have minutely perused the contents of the miscellaneous civil application, the deed executed between the parties on 26/10/2006, 5 as also the notice issued by the applicant to the respondent no.1 for appointment of Arbitrator. The notice mentions that the respondent no. 1 had not complied with the terms of the partnership and the matter needs to be referred for arbitration. The respondent no.1 was asked to suggest the name of the Arbitrator to be appointed by mutual consent. It appears from the alleged agreement that the partnership had not come into force between the applicant and the respondent no.2 as the partnership was deemed to be in force only after the applicant invested an amount of Rs. 20 lakhs before 20th October, 2006. It is not the case of the applicant even in the miscellaneous civil application that an amount of Rs. 20 lakhs is ever paid to the respondent nos. 1 and 2 and it is the case of the applicant that a total amount of Rs. 18 lakhs was paid to the respondent nos. 1 and 2. Though it is now submitted before this Court by the learned counsel for the applicant that an amount of Rs. 7 lakhs was paid to the respondent nos. 1 and 2 on 26/10/2006, and it was agreed between the parties that the partnership terms were altered 6 accordingly, this submission is liable to be rejected at the threshold as this submission does not find place in the miscellaneous civil application. Even otherwise, neither the miscellaneous civil application nor the notice speaks about a particular dispute between the parties which is referable to the Arbitrator. It is also necessary to note that the applicant has filed several proceedings against the respondents, a criminal complaint, a criminal writ petition which is withdrawn, two applications before the Debts Recovery Tribunal which are rejected with costs, and an application before the learned District Judge for grant of interim measure under Section 9 of the Arbitration Act, which is still pending. The grievance of the applicant, much less as it appears from the contents of the miscellaneous civil application, is about the amount of Rs. 17 lakhs which is admittedly received by the respondent nos. 1 and 2 from the applicant. I have already mentioned herein above that the respondent nos. 1 and 2 have themselves volunteered to refund the said amount to the applicant. 7 The judgments reported in (2007) 3 SCC 686, (2007) 5 SCC 692, (2008) 3 MhLJ 54, (2005) 12 SCC 188, A.I.R. 2000 SC 43, 2004 (1) Arbitration Law Reporter 141, and 2007 (4) Arbitration Law Reporter 37 and relied on by the counsel for the applicant, cannot be made applicable to the peculiar facts of this case and are of no assistance to the case of the applicant. Since no case is made out for appointment of an Arbitration under Section 11 of the Arbitration and Conciliation Act 1996, the miscellaneous civil application is dismissed with no order as to costs. JUDGE RMP