Sunil Sud & Anr v. Ajay Sud & Anr

1. IA 5685/2021 has been filed by Respondent No. 2 & 3 and IA 5686/2021 has been filed by Respondent No. 1 in this petition, seeking a modification of the order dated 3rd “i) restrain the Respondent No. 1 from selling, alienating, disposing off, encumbering, renting or creating any third-party right or interest in the movable and immovable assets of the Partnership Firm including plant and machinery, of the Partnership Firm without the consent of the Petitioners; ii) restrain the Respondent No. 1 from accepting and dispatching fresh orders with respect to pending stock available in the Factory of the Partnership Firm without the consent of the Petitioners; iii) restrain the Respondent Nos. 1 from operating the Bank accounts of the Partnership Firm, as mentioned in paragraph 4 of the petition, except with the joint signatures of at least one of the Petitioners' herein; March, 2021, passed by this Court in IA 3327/2021. By the said order, this Court had granted ad-interim relief in favour of the petitioner in terms of prayers, (i), (ii), (iii), (vi), (vii) and (viii) of the prayer clause in the petition. The prayer clause reads thus:iv) direct the Respondent Nos. 4 to 8 to activate the dual signature facility in respect of the Bank Accounts mentioned in paragraph 4 of the petition thereby, allowing the Petitioner No.2 to operate the said Bank accounts jointly with Respondent No. 1 and further, direct the said Respondents to provide periodic updates and Statement of Accounts to the Petitioners of the Bank Accounts for the period between 01.01.2013 till date and continue to provide the same until conclusion of the arbitration proceedings; v) direct the Respondent No 1 to render the true and correct accounts of the Partnership Firm from the Financial Year 2013 till date and provide, to the Petitioners, full and complete information of all things affecting the firm including details of pending stock, outstanding orders, outstanding payments of previous orders, production done by the Partnership Firm at third party locations/facilities in the last 3 [three] years; vi) restrain the Respondent Nos. 1 and 2 from creating hindrances and obstructions in the right of the Petitioners to take part in the operations of the business of the Partnership Firm and further direct the Respondent Nos. 1 and 2 to, forthwith, restore and ensure complete and unrestricted access to the following email accounts of the Petitioners sunil@mikiexports.com, priya@mikiexports.com and arjun@mikiexports.com; vii) restrain the Respondent Nos. 1 to 3 from using the immovable properties, assets including plant and machinery and stock, manpower and goodwill of the Partnership Firm for any other businesses of the said Respondent and further direct the said Respondents to furnish the Statement of Accounts of the Respondent No.3 from the Financial Year 2018-19 and continue to provide the same until conclusion of the arbitration proceedings; viii) restrain the Respondents, their agents, representatives and assignees from using the licenses and approvals granted by various statutory/government authorities [including by APEDA] to the Partnership Firm for carrying out any production or processing in a unit/factory of a third party, without the consent of the Petitioners.”

2. Both these applications essentially seek deletion, from the adinterim relief granted by this Court, of the relief prayed in prayer (vii) of this petition to the extent the prayer requires furnishing of the Statement of Accounts of Respondent No. 3 for the financial year 2018-19 to the petitioner and, on a continuing basis, till conclusion of the arbitral proceedings. To sustain the request for grant of modification of the order dated 3rd March, 2021 by deleting the adinterim relief granted to the extent of the direction for furnishing of Statement of Accounts of Respondent No.3 for the financial year 2018-2019, to the petitioner, reliance has been placed on para-13 of the order dated 3rd March 2021, which observes that prayers (i), (ii), (iii), (vi), (vii) and (viii) in the petition merely seek to preserve the assets of the partnership firm M/s Miki Exports. The application points out that, in order to preserve the assets of M/s Miki Exports, there can be no requirement of furnishing of the Statement of Accounts of Respondent No.3, i.e. M/s Suco Exports Pvt Ltd. It has also been averred that, under the Companies Act, the petitioner is not entitled to the access to the Statement of Accounts of M/s Suco Exports Pvt Ltd.

3. The requirement of going into this controversy is obviated in view of the fair submission of Mr. Dholakia, learned Senior Counsel for the petitioner that, for the present, he would not be seeking to enforce the order dated 3rd March, 2021, insofar as it directs furnishing of Statement of Accounts of Respondent No.3, reserving liberty to the petitioner to seek revival of the said relief before the learned Arbitral Tribunal.

4. Reserving liberty as aforesaid, for the present, the order of adinterim relief dated 3rd March, 2021, shall not be treated as requiring the furnishing of Statement of Accounts of Respondent No.3 to the petitioner. The order stands modified accordingly.

5. IA 5686/2021 is allowed accordingly.

6. The Arbitral Tribunal stands constituted. The parties are at adidem that the present petition under Section 9 of the Arbitration and Conciliation Act, 1996 may be disposed of by referring the petition to the learned Arbitral Tribunal to be adjudicated upon as an application under Section 17 of the 1996 Act.

7. It is ordered accordingly.

8. The impugned order dated 3rd March, 2021 as modified today, shall continue to remain in force pending further orders to be passed by the learned Arbitral Tribunal. The Arbitral Tribunal is requested to decide O.M.P.(I) (COMM.) 89/2021, treating it as an application under Section 17 of the 1996 Act as expeditiously as possible, uninfluenced by any orders passed in these proceedings.

9. OMP(I)(COMM) 89/2021 stands disposed of accordingly.

10. Pending applications do not survive for consideration and stand disposed of accordingly.

C.HARI SHANKAR, J AUGUST 5, 2021