- (1.) UMESHWAR Pandey, J. Heard Sri Rahul Sripat, learned Counsel appearing for the appellant and Sri Praveen Kumar, learned Counsel appearing for the sole respondent.
(2.) THE learned Counsel for the parties agree that this appeal may be finally heard and disposed of at the stage of admission itself. By the impugned order dated 10-1-2007, the District Judge has granted the prayer made before the Court under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter called as 'the Act') and has directed the parties to maintain status quo regarding the firm M/s. Model Service Station, Mirzapur Road, Naini till the dispute is finally settled by the Arbitral Tribunal as contemplated in Clause 17 of the partnership deed. A partnership firm was created and an agreement to that effect was entered into between the parties giving the firm a name and style of M/s. Model Service Station. Besides several clauses, an arbitration clause (Para-17) was also added to the agreement which says that 'in case of any dispute and/or difference arising out of these presents and/or relating to the partnership business including goodwill, shall be referred to the arbitration of two arbitrators, each appointed by the parties here to'. The appellant as a partner of the firm claims to have given a notice in Annexure-4 to the respondent dissolving the firm aforesaid with effect from 1-11-2005. It was further stated in the notice that this being a formal notice under Section 43 of the Partnership Act for firm's dissolution the business of the firm having been wound up with immediate effect the accounts be settled as provided in Section 46 of the Partnership Act. In addition to this individual notice, the appellant also intimated that the public notice was given separately notifying the dissolution of the firm. The notice has been duly replied vide Annexure-5 by the respondent stating that the partnership is not at will and that the dissolution of the partnership can be done only within the statutory provisions of the Partnership Act. It was also intimated that in exercise of her option, the respondent had taken over the firm in her individual capacity and formalities in that regard would be made at her expenses. The notice also stipulates that the intimation by way of notice by the appellant was only to the effect of his retirement from the partnership. Subsequent to this reply notice, another letter in Annexure-11 was sent by the respondent to the appellant stating that dispute has arisen between the parties regarding the dissolution of the firm and that after appellant's retirement, the respondent was entitled to carry on the business of the firm in her individual capacity and in order to resolve the dispute between the parties, a proposal was made therein appointing Sri Ajit Dhawan, Advocate, as one of the two arbitrators. A request was also made calling upon the appellant to agree to the name of Sri Dhawan for this purpose. While placing her prayer under Section 9 of the Act before the Court below, it was further stated in the accompanying affidavit that the appellant opposite-party was illegally threatening the surrender of the land of petrol pump belonging to the firm to M/s. Sri Baidyanath Ayurved Bhawan Ltd. , the owner and landlord of the said land and, thus, to cause damage to the property of petrol pump and not to let the applicant carry on the business. Thus, in the background of the aforesaid facts, the respondent-applicant claims to have made out a case before the District Judge for interference under Section 9 of the Act so that the property at the petrol pump be preserved and the respondent may not be put to irreparable loss.
(3.) THE District Judge having assessed the entire material placed before the Court, found that so long as the whole dispute between the parties was not resolved before the Arbitral Tribunal it would be just and proper that the interest of the respondent- applicant should be protected and the property of the firm which is in the shape of petrol pump should be preserved. Accordingly, the impugned order has been passed. Sri Rahul Sripat, the learned Counsel for the appellant has in the first place made much stress upon the fact that there was absolutely no cause of action for moving the present petition before the District Judge under Section 9 of the Act and that the firm being a partnership firm at will having already been dissolved, the only thing which remains for settlement between the parties is the settlement of account etc. and that this question as to whether the firm has actually been dissolved or not is not a subject- matter for any decision before the Arbitral Tribunal. It is further submitted by Sri Rahul Sripat that in case where there are only two partners and a notice for dissolution has been given by one partner to the other, there remains no occasion for the firm to remain alive and it stands immediately dissolved on the receipt of the notice.;