VIJAYKUMAR BHOGILAL PATEL Vs. KARIM MOHAMMED MAREDIE

JUDGEMENT

(1.) THERE is admittedly a Deed of Partnership entered into between the plaintiff on the one hand and the defendant on the other, dated 1/04/1997. Clause 11 of the said partnership deed reads as under :-'the duration of the partnership shall be "at Will" terminable by either of the partner giving three calendar month's notice in writing to the other partners. Death, Retirement, Insolvency of insanity of any partner shall not dissolve the partnership. " clause 15 of the Deed of Partnership reads as under :-

(2.) THE suit thereafter came to be filed on 19th August, 2003. Some of the relevant prayer clauses in the suit are as under :-

(3.) ON behalf of the plaintiffs it is argued by the learned Counsel that though the partnership is at Will and though the plaintiffs had served a notice for dissolution of the partnership that will come into effect after 3 months from the date of receipt of notice dated 10th July, 2003. It is in that context it is contended that they have prayed for dissolution of partnership on just and equitable grounds. The ground for just and equitable dissolution is a power conferred on the Court and not on the arbitrator. In these circumstances it is contended that this Court retains jurisdiction to hear and decide the suit. For that purpose reliance was placed on the judgment of Privy Council in the case of (Rehmatunnissa Begum and others v. Price and others), A. I. R. 1917 P. C. 116. Reference also made to the judgment in (Olverv. Hitter), 1959 (2) All. E. R. 220. On behalf of the defendants their learned Counsel contends that considering the clause in the partnership and the language thereof all disputes and differences arising from and out of the partnership can be decided by the arbitrator. It is pointed out that this will also include the ground of dissolution on just and equitable ground. Reliance for that purpose is placed on the judgment in the case of (V. H. Patel and Company and others v. Hirubhai PKmabhai patel and others), 2000 (4) Bom. C. R. (S. C.)91 : 2000 (4) S. C. C. 368. It is contended that if the language of section 44 of Partnership Act is considered it would be seen that there are other grounds where the Court may dissolve the partnership and which dissolution is not based on the partnership agreement. If the construction sought to be placed by the plaintiff is to be accepted then those cases covered by Clauses (a) to (f) of section 44 also cannot be subject-matter of reference to the arbitrator and it is the Court alone that could exercise jurisdiction to dissolve the partnership. It is pointed out that the apex Court in V. H. Patel (supra) has held otherwise. The mere fact that the issue of section 44 (a) was not answered would not mean that the arbitrator would have no jurisdiction in case dissolution is sought on just and equitable ground.