- (1.) The above appeal has been preferred against the judgment and order dated 5th September, 2007 passed by the learned Single Judge of this Court in the aforesaid Special Suit under Arbitration Act, 1940 (since repealed). The learned Trial Judge has been pleased to pass orders though not expressly but in substance, allowing prayer of the respondents for filing of the arbitration agreement dated 23rd December, 1972, and directing the parties to nominate their respective learned Arbitrators and also to appoint Umpire in anticipation.
(2.) The short fact leading to preferring this appeal is as follows:- The respondents herein are the heirs and legal representatives of one Mohanlal Kocher since deceased whereas the appellants are the heirs and legal representatives of one Mohanlal Maheswari. The predecessor-in-interest of both the parties namely Mohanlal Maheswari and Mohan Kocher formed a partnership firm in or about January 1955 for the purpose of carrying on business under the name and style of Bharat Industries and Commercial Corporation. The said firm was reconstituted from time to time and thereafter with effect from 23rd December, 1972 both the said Mohans carried on business under the same name on the terms and conditions contained in the deed of partnership dated 23rd December, 1972. The said two persons had been carrying on business as a co-partner thereof, of manufacturing, sale of trailers, aircraft refuellers. That apart the said firm had also business of import agency in India, of tractors, agricultural equipments, tiping trucks, tower cranes from various European countries including former Soviet Union and other eastern European countries. It is stated in the petition that the said firm had substantial assets and properties including land and buildings and factory shed and tenancy right and office accommodation in the heart of city of Calcutta (now Kolkata). Thereafter because of varieties of reasons the said business suffered set back and as such business could not continue as it was doing. Moreover, there was problem between the partners also. On 17th December, 1984 one of the partners Mohanlal Maheswari predecessor-in-interest of the appellants died. After the death of said Mohanlal Maheswari steps were taken for continuation of the business of the said firm and also for preservation of its funds, assets, properties. The bank as well as other creditors filed suit for recovery of their alleged dues. It appears that Mohanlal Maheswari during his life intended to sell share allegedly wrongfully and illegally, in the assets and properties of the said partnership firm entering into an agreement dated 26th December, 1990 with one Om Prakash Choudhury. Thereafter the said Om Prakash is alleged to have assigned right, title and interest under the said agreement for sale in favour of one Mr. Kishan Mimani, who thereafter in the year 1993 filed a suit for specific performance in this Hon ble Court for agreement for sale. According to the respondents/plaintiffs the said agreement is illegal and collusive and the said Maheswari had no right, title and interest to enter into such agreement. Thereafter, Mohanlal Kocher died and on his death respondents/plaintiffs asked for effective dissolution of the partnership firm and also demanded for taking steps for early division or disbursement of the shares in the assets and properties of the said firm. In spite of repeated demand and request no step was taken. Various wrongful and illegal step having been taken to deprive the plaintiffsrespondents and refused to share secret profits and also unlawful gain. No accounts have been submitted as to their dealings. Hence the disputes and differences arose and those disputes and differences are mentioned in paragraph 32 of the petition.
(3.) The said partnership deed contains an arbitration clause which is wide enough a mechanism for resolution of all the disputes not only between the original partners but also their heirs and legal representatives who are parties to the special suit.;