1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION ARBITRATION ARBITRATION ARBITRATION PETITION NO.140 OF 2007 PETITION NO.140 OF 2007 PETITION NO.140 OF 2007 Mahendra Mahendra Mahendra N.Thakkar N.Thakkar N.Thakkar ...... Petitioner Petitioner Petitioner vs vs vs Jayesh Jayesh Jayesh M.Gandhi & ors M.Gandhi & ors M.Gandhi & ors ...... Respondents Respondents Respondents Mr.Mahendra Mr.Mahendra Mr.Mahendra Shah Shah Shah i/b Komana & Co for i/b Komana & Co for i/b Komana & Co for Petitioner Petitioner Petitioner Mr.Paritosh Mr.Paritosh Mr.Paritosh Jaiswal Jaiswal Jaiswal a/w Mr.Dipen Desai i/b Kanga & a/w Mr.Dipen Desai i/b Kanga & a/w Mr.Dipen Desai i/b Kanga & Co Co Co for for for Respondent nos. 1 to 3. Respondent nos. 1 to 3. Respondent nos. 1 to 3. Mr.N.C.Parekh Mr.N.C.Parekh Mr.N.C.Parekh i.b Mansukhlal Hiralal & Co for Respt i.b Mansukhlal Hiralal & Co for Respt i.b Mansukhlal Hiralal & Co for Respt no.4 no.4 no.4 CORAM CORAM CORAM : ANOOP V.MOHTA, J : ANOOP V.MOHTA, J : ANOOP V.MOHTA, J DATE DATE DATE : 3rd May, 2007 : 3rd May, 2007 : 3rd May, 2007 P.C. P.C. P.C. 1.1.1. The petitioner has invoked section 9 of the The petitioner has invoked section 9 of the The petitioner has invoked section 9 of the Arbitration Arbitration Arbitration and Conciliation Act (Arbitration Act, and Conciliation Act (Arbitration Act, and Conciliation Act (Arbitration Act, 1996) 1996) 1996) being a party to the partnership deed. being a party to the partnership deed. being a party to the partnership deed. 2.2.2. Based on partnership deed, an Arbitral Tribunal Based on partnership deed, an Arbitral Tribunal Based on partnership deed, an Arbitral Tribunal isisis constituted of a sole Arbitrator and before the constituted of a sole Arbitrator and before the constituted of a sole Arbitrator and before the same same same Arbitrator proceedings are going. On 16th Arbitrator proceedings are going. On 16th Arbitrator proceedings are going. On 16th December December December 2004 and 8th September, 2005 parties have 2004 and 8th September, 2005 parties have 2004 and 8th September, 2005 parties have agreed agreed agreed for interim arrangement and accordingly for interim arrangement and accordingly for interim arrangement and accordingly consent consent consent terms have been filed. The partnership terms have been filed. The partnership terms have been filed. The partnership business business business is running accordingly. is running accordingly. is running accordingly. 3.3.3. Following is the important clause appearing in Following is the important clause appearing in Following is the important clause appearing in the the the partnership deed which is the bone of partnership deed which is the bone of partnership deed which is the bone of contention contention contention in the present petition: in the present petition: in the present petition: 2 12 12 12 (b). (b). (b). Every Every Every partner partner partner shall retire from the firm shall retire from the firm shall retire from the firm atatat the end of the firm’s financial year in the end of the firm’s financial year in the end of the firm’s financial year in which which which he he he attains the age of 65. attains the age of 65. attains the age of 65. 4.4.4. Admittedly, the petitioner has attained the age Admittedly, the petitioner has attained the age Admittedly, the petitioner has attained the age of of of 65 65 65 as on 31st March, 2007 and therefore based on as on 31st March, 2007 and therefore based on as on 31st March, 2007 and therefore based on clause clause clause 12 12 12 (b) as per this agreement, the petitioner (b) as per this agreement, the petitioner (b) as per this agreement, the petitioner stands stands stands retired. Learned counsel appearing for the retired. Learned counsel appearing for the retired. Learned counsel appearing for the petitioner petitioner petitioner however, is disputing the said however, is disputing the said however, is disputing the said interpretation interpretation interpretation based on clause 2 as referred above. based on clause 2 as referred above. based on clause 2 as referred above. 5.5.5. Admittedly, there is no reply filed by the Admittedly, there is no reply filed by the Admittedly, there is no reply filed by the respondents respondents respondents in the petition. The petitioner’s in the petition. The petitioner’s in the petition. The petitioner’s apprehension apprehension apprehension as regards the advertisement and as regards the advertisement and as regards the advertisement and notices notices notices of of of retirement has become infructuous as the retirement has become infructuous as the retirement has become infructuous as the respondents respondents respondents had already published and advertised had already published and advertised had already published and advertised accordingly accordingly accordingly prior to the filing of the present prior to the filing of the present prior to the filing of the present petition. petition. petition. Having once published, the submission Having once published, the submission Having once published, the submission that that that hereinafter they should not publish the said hereinafter they should not publish the said hereinafter they should not publish the said notice notice notice again is difficult to accept. again is difficult to accept. again is difficult to accept. 6.6.6. However, as regards the main prayer clause (a) However, as regards the main prayer clause (a) However, as regards the main prayer clause (a) whereby whereby whereby the petitioner has sought injunction order the petitioner has sought injunction order the petitioner has sought injunction order against against against the respondents from restraining the the respondents from restraining the the respondents from restraining the petitioner petitioner petitioner from acting as partner based on those from acting as partner based on those from acting as partner based on those orders orders orders of this court, at this stage of of this court, at this stage of of this court, at this stage of proceedings,in proceedings,in proceedings,in view of clause 12 (b) as reproduced view of clause 12 (b) as reproduced view of clause 12 (b) as reproduced above, above, above, I am not inclined to grant any relief as I am not inclined to grant any relief as I am not inclined to grant any relief as 3 prayed. prayed. prayed. I am not expressing any opinion on those I am not expressing any opinion on those I am not expressing any opinion on those terms terms terms as disputed by the partners. as disputed by the partners. as disputed by the partners. 7.7.7. There is no case made out in the facts and There is no case made out in the facts and There is no case made out in the facts and circumstances circumstances circumstances of the case in view of the averments of the case in view of the averments of the case in view of the averments made made made and also in view of the facts as reflected in and also in view of the facts as reflected in and also in view of the facts as reflected in the the the petition and basically in view of clause 12 petition and basically in view of clause 12 petition and basically in view of clause 12 (b). (b). (b). 8.8.8. Unless it is decided, at this stage, prima Unless it is decided, at this stage, prima Unless it is decided, at this stage, prima facie facie facie the clause itself reflects that the the clause itself reflects that the the clause itself reflects that the petitioner petitioner petitioner ceases to be the partner of the firm, as ceases to be the partner of the firm, as ceases to be the partner of the firm, as he he he has attained the age of 65. has attained the age of 65. has attained the age of 65. 9.9.9. Considering the submissions raised and keeping Considering the submissions raised and keeping Considering the submissions raised and keeping all all all points points points open, I am of the view that the tribunal open, I am of the view that the tribunal open, I am of the view that the tribunal which which which is already constituted by some other partner is already constituted by some other partner is already constituted by some other partner arising arising arising out of the same partnership deed as out of the same partnership deed as out of the same partnership deed as consented, consented, consented, by both the parties, the present issues by both the parties, the present issues by both the parties, the present issues and and and disputes as raised in the petition also disputes as raised in the petition also disputes as raised in the petition also referred referred referred to the same Arbitrator. All points are to the same Arbitrator. All points are to the same Arbitrator. All points are kept kept kept open including the interpretation of the open including the interpretation of the open including the interpretation of the clauses clauses clauses in the partnership deed in question. in the partnership deed in question. in the partnership deed in question. 10. 10. 10. In view of this, present petition is disposed In view of this, present petition is disposed In view of this, present petition is disposed of. of. of. No order as to costs. No order as to costs. No order as to costs. (Anoop (Anoop (Anoop V.Mohta, J) V.Mohta, J) V.Mohta, J)