V.D.Chaturvedi, J. - (1.) HEARD Sri P.K. Khare, learned counsel for the appellants and Sri Surya Kant as well as Sri B.K. Saxena, learned counsel for the respondents.
(2.) INSTANT appeal has been preferred by the appellants against the order dated 17.4.2008 passed by the District Judge, Ambedkar Nagar in Original Suit No.02 of 2005 by which a decision has been taken for appointment of the Receiver under Section 9 of the Arbitration and Conciliation Act, 1996 (herein after referred to as the Act). The brief facts of the case are that a registered partnership deed was executed on 30.03.1988 between eight persons namely Jagdish Prasad Singh, Ram Daras Mishra, Ram Avadh Mishra, Subhash Singh, Sri Ram Mishra, Narendra Kumar Singh, Mratunjaya Mishra and Mulk Bahadur Singh. The partnership deed was entered in between the parties to run a Cinema hall namely M/s. Sanjay Talkies situate at Malipur Road, Shahzadpur Akbarpur District Ambedkar Nagar. In the said firm, Jagdish Prasad Singh and Ram Daras Mishra were allotted 20% share each and the rest were having 10% share each. On account of death of Mulk Bahadur Singh on 18.06.1990, a fresh partnership deed was executed in between the parties on 01.04.1992 and Sri Sanjay Singh and Rajesh Kumar Singh both sons of Mulk Bahadur Singh were inducted as partners on the place of their father. However, at later stage, a dispute arose between the parters and Sri Jagdish Prasad Singh moved an application under Section 145 Cr.P.C. on 6.5.2003 before the Sub Divisional Magistrate concerned with the averment that he is the sole owner of the picture hall and exclusively running the same since 28.3.1990. Before the Sub Divisional Magistrate concerned he also taken a plea that he has personally taken loan of Rs.50, 000/- from the Bank of Baroda and is making repayment. The Sub Divisional Magistrate vide order dated 30.9.2003 dropped the proceedings under Section 145 Cr.P.C. On 23.04.2005, the respondents filed a petition under Section 9 of the Act before the District Judge, Ambedkar Nagar. It has also been brought to the notice of this Court that an application under Section 11 of the Act has filed in this Court about three years back, which is pending and the Arbitrator is yet to be appointed by the Chief Justice/Senior Judge of this Court. Before the District Judge, the parties advanced their arguments and after hearing the parties, the District Judge taken a decision to appoint the Receiver and both the parties were directed to give two names each so that appropriate person may be appointed as Receiver. Feeling aggrieved with the order passed by the District Judge, present appeal has been filed. Sri P.K. Khare, learned counsel for the appellants, raised two folds argument. Firstly, since the partnership has not been dissolved and the business is running, no Receiver can be appointed in view of the judgments of Hon'ble Supreme Court and Madras High Court reported in (2002) 1 SCC 203; Kalpana Kothari (Smt.) Vs. Sudha Yadav (Smt.) and others, (2004) 3 SCC 155; Firm Ashok Traders and another vs. Gurumukh Das Saluja and others and AIR 1955 Mad. 430; T. Krishnaswamy Chetty vs. C. Thangavelu Chetty and others. The other submission of Sri Khare is that even if an Arbitrator is appointed, the controversy cannot be resolved.
(3.) ON the other hand Sri Surya Kant as well as Sri B.K. Saxena, learned counsel for the respondents, submitted that in a proceeding under Section 9 of the Act, the Court has got power to appoint Receiver after considering overall necessity to balance the interest of both the parties. It has also been submitted that since the appellants themselves, while initiating proceeding under Section 145 Cr.P.C., had taken plea that partnership does not subsist and Sri Jagdish Prasad Singh is the sole owner of the picture hall in question and after drop of the proceeding by the Sub Divisional Magistrate, the respondents have been ousted and they have not been permitted to share liability under the Partnership Act. The decision taken by the District Judge, Ambedkar Nagar seems to be just and proper under the facts and circumstances of the present case. It has also been submitted by the respondents' counsel that the appellants had committed fraud by preferring a Writ Petition No.2377 (MB) of 2207 on behalf of the respondents, though they have never consented to do so.;