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Date of Decision: 10.5.2019
PRAVEEN MARWAH & ANR. ..... Petitioners
Through Mr. Amit Gutpa, Mr. S.K. Paanchal and Ms. Aarushi, Advs.
Through None
JUDGMENT
1. This is a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short ‘1996 Act’).
2. Notice in this petition was issued on 30.7.2018. The notice was made returnable on 8.10.2018. Even though the record shows that service was complete there was no representation on behalf of the respondents on 8.10.2018.
3. Pertinently, on 8.10.2018, the counsel for the petitioners had informed me that the stand taken on the previous date on behalf of the petitioners that the respondents had not sent their reply to the notice dated 13.2.2018, whereby the petitioners had triggered the arbitration agreement, was incorrect. 3.[1] Learned counsel for the petitioners had drawn my attention to page 10 of the documents file to establish that, in fact, the respondents 2019:DHC:2591 ARB.P. No.538/2018 Pg. 2 of 5 had preferred a reply dated 26.3.2018 to the petitioners’ notice dated 13.2.2018. 3.[2] After having recorded the submission made by the counsel for the petitioners, I deferred the proceedings to 2.11.2018, to give one more opportunity to the respondents to appear before the Court. Consequently, adverse orders were deferred on 8.10.2018.
4. On 2.11.2018, respondent no.1 presented himself in Court. Respondent no.1 was identified by counsel for the petitioners. 4.[1] I was informed by respondent no.1 that respondent no.2 was his son. Accordingly, three weeks were granted to respondent no.1 to file a reply in the captioned matter.
5. Since the respondents chose not to file a reply in the matter in the allotted time, an early-hearing application was moved on behalf of the petitioners on the ground that no reply had been filed by the respondents despite an opportunity being given in that behalf. 5.[1] The early-hearing application was, however, disposed of, albeit, ex parte with a direction to the respondents to file their reply within two weeks of receipt of a copy of the order passed on that date i.e. 12.3.2019. 5.[2] The Registry was directed to dispatch copies of the orders to the respondents. In addition, liberty was given to the petitioners to serve on the respondent copies of the order passed by me on 12.3.2019.
6. Mr. Gupta, who appears for the petitioners, says under cover of a letter dated 27.3.2019, a copy of order dated 12.3.2019 was dispatched to the respondents. ARB.P. No.538/2018 Pg. 3 of 5 6.[1] Mr. Gupta says that the petitioners have been remiss in not placing the relevant documents on record to show service of the order. Let the needful will be done within one week from today. 6.[2] However, this obvious miss-step need not detain me as the Registry, it appears, as directed, did despatch a copy of the order dated 12.3.2019 to the respondents. 6.[3] The net effect of the same is that the respondents have chosen as it appears to deliberately keep away from the Court. 6.[4] This approach of the respondents leaves me with no choice but to continue with the captioned petition as Mr. Gupta presses the same.
7. The record shows that the parties have been trading in tailoring material and textile accessories since April, 2005.
8. As a matter of fact, it appears that the business was being conducted under the trade name Paramount Agencies, albeit, under a Partnership Deed dated 28.4.2005. However, it appears that thereafter the subject Partnership Deed dated 1.4.2007 was executed between the parties.
9. Petitioner no.1 and respondent no.l along with their respective progeny i.e. petitioner no.2 and respondent no.2, as partners in the Partnership Deed dated 1.4.2007. To be noted, petitioner no.2 is the son of petitioner no.1 while respondent no.2 is the son of respondent no.1.
10. Apparently, disputes have arisen between the petitioners and the respondents.
11. The Petitioners seek dissolution of the partnership firm (i.e. Paramount Agencies) and rendition of accounts. The record shows ARB.P. No.538/2018 Pg. 4 of 5 that the petitioners had despatched a notice as far as back as on 26.12.2017 to the respondents for inspection of books and verification of stocks of Paramount Agencies.
12. According to the petitioners, they did not receive a favourable response which propelled them to trigger the arbitration agreement via notice dated 13.2.2018.
13. As adverted to herein above, the respondents sent a reply to the same vide communication dated 26.3.2018.
14. I must indicate, at this stage, that the respondents in their reply dated 26.3.2018 have taken stand that there is no partnership firm in existence on account of a family settlement. However, in response to the names suggested by the petitioners for appointment of an arbitrator, the respondents have also given their panel of names.
15. What, therefore, emerges upon reading the reply of the respondents is that while they contend that the arbitration agreement is not in existence they have suggested the names for appointment of an arbitrator to enable adjudication of the disputes. There is, therefore, common ground between the parties that the arbitration agreement exists, which, as indicated above, stands incorporated in the Partnership Deed dated 1.4.2007.
16. Thus, having regard to the overall circumstances, I am inclined to allow the prayer sought for by the petitioners.
17. Accordingly, Mr. Justice Moolchand Garg, former judge, Delhi High Court (Cell No.: 9899337979), is appointed as an Arbitrator in the matter.
18. The learned arbitrator will be paid his fee in accordance with ARB.P. No.538/2018 Pg. 5 of 5 the provisions of the Fourth Schedule appended to the 1996 Act.
19. Needless to say, the learned arbitrator, before entering upon reference, shall file a declaration in terms of Section 12 read with the attendant provisions of the 1996 Act.
20. For convenience of the learned arbitrator, the mobile numbers of the counsel for the petitioners are given hereafter.
(i) Mr. Amit Gutpa, counsel for the petitioners- Mobile NO. 9810273846.
(ii) Mr. S.K. Paanchal, counsel for the petitioners- Mobile
21. The learned Arbitrator before proceedings with the arbitration will once again issue notice to the respondents. The record pertaining to the notice issued will be maintained by the learned arbitrator.
22. The Registry will despatch a copy of the order passed today to the respondents at the address given in the petition.
23. The petition is disposed of in the aforesaid terms.
24. For the purposes of good order and record, the Registry will scan and upload the copies of the tracking report which have been placed before me by Mr. Gupta during the course of arguments.
25. Mr. Gupta will also file an affidavit in support of the reports which have been placed before me in Court within a period of one week from today.
RAJIV SHAKDHER, J MAY 10, 2019 rb