PRADEEP V NAIK Vs. SULAKSHANA A NAIK

JUDGEMENT

(1.) Heard both sides. This is an application filed for appointment of an arbitrator to resolve the disputes arising between the applicant and the non-applicants in the following circumstances : there was a partnership agreement for carrying on certain business in the name of "mudranand", entered into between the applicant and the non-applicants on 12-2-1988, which contained, inter alia, Clause 17 for referring the disputes to the arbitrators. Clause 17 of the said agreement reads as follows :

(2.) An application dated 13-4-2005 has been filed in this proceeding on behalf on non-applicant No. 2 stating therein that he was minor when he was admitted to the benefit of the partnership and after attaining the majority on 17-11-2004, he had given notice dated 11-4-2005 to the Registrar of Firms under section 63 (2) of the Indian Partnership Act, 1932, electing not to become the partner of the said firm Mudranand. Non-applicant No. 1 has filed an affidavit dated 5th May, 2005 in this Court, inter alia, stating in paragraph (3) thereof that the new agreement dated 1-4-1992 was executed in the Office of M/s. Powar and Associates, chartered Accountants of the Firm She has annexed a copy of the Deed of Partnership dated 1-4-1992 to her affidavit. The applicant has filed rejoinder dated 15-6-2005, denying the execution of the alleged agreement dated 1-4-1992 by the applicant and denying his signature on the said document.

(3.) On behalf of non-applicant No. 1 Mr. Dessai contended that since the new agreement dated 11-4-1992 does not contain the clause regarding reference of the disputes to an arbitration, the disputes cannot be referred to an arbitrator under section 11 of the Act. According to him, since the same partnership has continued, as per the new deed of partnership, there was no reconstitution of the partnership firm and therefore, registration of this document of partnership afresh was not required. According to him, the new agreement was entered into only for the purpose of obtaining some benefits under the Tax Laws providing for payment of salary to the working partners. Mr. Desai contended that on comparison of the signatures of the applicant on the two documents, namely dated 12-2-1988 and 1-4-1992, denial of his signature on the application appears to be false and therefore, since there is no agreement between the two for referring all the disputes to the arbitrator, no reference should be made under section 11 of the act for arbitration. He placed reliance on a decision of the Supreme Court delivered by m. Jagannadha Rao, J. , sitting singly in the case of (Wellington Associates Ltd. v. Kirit mehta) , 2000 (4) S. C. C. 272, and contended that the Court will have to decide the question of existence of the Arbitration Agreement before referring the matter for arbitration.