- (1.) THIS is an appeal filed by the defendants Sabyasachi Dasgupta and Sinclair and Company a firm registered under the Indian Partnership Act impugning an order dated june 30, 1992 passed by the learned Assistant District Judge, 10th Court at Alipore in Title Suit No. 19 of 1992 whereby an application filed by the defendants under Section 34 of the Arbitration Act, 1940 praying for stay of the suit stood rejected.
(2.) ON March 7, 1992 the plaintiffs, Swapan Das Gupta and Satyajit dasgupta instituted Title suit No. 19 of 1992 in the court of the 10th assistant District Judge at Alipore against the appellants Sabyasachi dasgupta and Sinclair and Company praying inter alia for a decree for recovery of Rs. 2,88,901/- by plaintiff No. 1 and Rs. 35,000/- by the plaintiff No. 2 on a declaration of charge on the available assets of Sinclair and Company. The defendant No. 2 also charged interest from February 16, 1992 till realisation of the claim. The plaintiffs prayed for permanent injunction restraining the defendants from disposing of or transferring or otherwise encumbering the assets of Sinclair and Co. without leave of the court. They also prayed for the Receiver, attachment, injunction and further reliefs which they may be entitled to tin law and equity. In the said suit an application was also make under Order 39 Rule 1 and 2 C. P. C. read with Section 151 C. P. C. which is pending. On March 7, 1992 the Trial court passed an order inter alia to the effect that there should be an injunction upon the defendants restraining them from disposing of the assets of the partnership firm as described in the schedule of the petition till the hearing of the injunction matter. The contention of the defendant appellants is the effect that there is already an arbitration agreement in between the parties. On June 15, 1989 Swapan Dasgupta and Satyajit Dasgupta on the one hand and sabyasachi Dasgupta on the other entered into an agreement whereby swapan Dasgupta on the other entered into an agreement whereby Swapan dasgupta and Satyajit Dasgupta as retiring partners decided to retire from the Sinclair and Company with effect from 15th June, 1989 in accordance with Clause 21 of the partnership Deed dated 5th January, 1989. Sabyasachi Dasgupta was to continue the business of M/s. Sinclair and company either as the sole proprietor or by inducting partners according to his choice and convenience. The retiring partners also agreed not to have any right, interest, goodwill and assets on the ongoing business or prospects of further business of the Firm M/s. Sinclair and Co. The retiring partners were absolved of the liabilities of the said firm and it was decided that the liabilities of all the creditors or any contingent liabilities of the obligations and liabilities of any of the employees of the said firm on any account whatsoever should be borne by the continuing partners.
(3.) THE continuing partner is to cause a balance sheet of the said Firm m/s. Sinclair and Company to be prepared upto 15th June, 1989 and have the same audited by the M/s. K. C. Bose and Co. and shall give an audited balance sheet to the retiring partners. The continuing partners shall be obliged to file all returns with the Income Tax Authorities and other authorities in regard to obligations of the said firm and those of the retiring partners for their association with the said firm upto 15th June, 1989 and shall in due course make over certificates from the said authorities discharging the retiring partners from their obligations to the revenue and other authorities. The continuing partners paid to Mr. Swapan Dasgupta a sum of Rs. 1,00,000/- and a sum of Rs. 25,000/- to Satyajit Dasgupta before the signing of the deed and undertook to pay Mr. Swapan Dasputa a further sum of Rs. 1,25,000/- and a further sum of Rs. 25,000/- to both within five months from June 15, 1989 and the final payment of Rs. 2,00,000/- to Mr. Swapan Dasgupta and the final payment of Rs. 25,000/-to Mr. Satyajit Dasgupta within eight months from 15-6-89. Such payments should be received by the said Swapan Dasgupta and Satyajit dasgupta in full and final settlement of all their claims demands rights and actions against the said firm of M/s. Sinclair and Company in its goodwill and assets and such payments have been agreed upon after taking into consideration all the obligations of the said firm of M/s. Sinclair and Co. and of the retiring partners. The payments as mentioned hereinbefore outstanding shall form a first charge in favour of the recipients on all the assets of the said firm of M/s. Sinclair and Company. In default of payment of the amounts hereinbefore undertaken by the continuing partner, the retiring partners shall be entitled to interest at the then current banks lending rate of interest. The retiring partner Mr. Swapan Dasgupta who was in possession and control of a motor vehicle being Fiat Padmini bearing Registration No. WME 5990, was declared entitled to retain the said motor vehicle and the book value of the said motor vehicle is to be executed against the money receivable by the said motor vehicle is to be executed against the money receivable by the said retiring partner Mr. Swapan Dasgupta. It was also agreed by and between the parties that in case any dispute or difference arose between the parties hereto on any account whatsoever relating to the meaning of any words, phrases or clauses in the said agreement the same shall be referred to the arbitration of Mr. Sunil Kumar Mitra whose decision shall be final and binding on the parties.;