BIJAYA LAXMI NAYAK Vs. BHATA KISHORE DALAI

JUDGEMENT

(1.) THIS appeal under Section 39 of the Arbitration Act, 1940 is directed against the order dated 31.3.1997 passed by the learned Civil Judge (Senior Division), Jeypore in O.S. No.47 of 1995 dismissing the application filed under Section 20 of the Indian Arbitration Act, 1940.

(2.) THE case of the appellant is that both the appellant and respondent are partners of a firm and were jointly looking after the business in Upper Kolab Dam Project, Bodaparia near Borigumma. As per the partnership agreement, the profit and loss of the said partnership business would be distributed among them at the ratio of 60% and 40%. The work was completed on 19.10.1994. The appellant being a lady, the work was being looked after by her father and husband according to their convenience. After completion of the work, the partnership stood dissolved due to non -finalization of the Final Bill. Though the appellant asked the respondent to render the accounts, he failed to do so. Out of the profits of the partnership business, a truck, a car and a motorcycle were purchased. On 1.1.1994, the respondent issued a cheque for Rs.50,000/ - in favour of the appellant but the same could not be encashed due to insufficiency of funds. Whenever a request was made by the appellant to pay the amount, the respondent promised to pay the amount but never paid. The respondent having failed to pay the money due to the appellant in spite of several requests, the agreement containing the Arbitration Clause was invoked. Notice was issued to the respondent but the same returned un -served. However, on 16.7.1995, the respondent gave in writing that he would pay the share of the appellant within fifteen days but again failed to make payment. When the appellant came to know that the respondent has raised a running bill till 2.3.1995 but did not pay a single paisa to her, she demanded her share 40% out of the profits, but the same having not been paid, an application under Section 20 of the Arbitration Clause, 1940 was filed before the learned Civil Judge (Senior Division), Bhubaneswar.

(3.) ON the pleadings of the parties, the learned Civil Judge framed nine issues and held that the parties had dissolved their partnership after full and final settlement of the accounts. The Court further held that had the partnership business not been dissolved, the question would be something else and the partnership having been dissolved and the accounts having been settled finally, there is no dispute for referring the case to the Arbitrator for adjudication. With the above findings, the petitioner under Section 20 of the Indian Arbitration Act, 1940 was dismissed.