SUNIL KUMAR GARG, J. - (1.) THIS misc. appeal has been filed by the appellants (hereinafter referred to as the petitioners) against the order dated 11.4.2000 passed by the learned Addl. District Judge No. 1. Jodhpur in Civil Misc. (A) Case No. 2/99, by which he rejected the application filed by the petitioners Under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act of 1996') for appointment of Receiver.
(2.) THE facts giving rise to this appeal, in short, are as follows: The petitioners filed an application Under Section 11(5) of the Act of 1996 bearing No. 3/99 on 20.11.1999 in the Court of District Judge, Jodhur against the respondents (hereinafter referred to as the non -petitioners) stating inter -alia that a partnership deed was executed between the petitioners and non -petitioners on 1.4.1996 and by that partnership deed, a firm came into existence known as 'M/s Hotel Marudhar' having its principal place of business at Jodhpur and Branch at Mount Abut District Sirohi. The said partnership was at Will, as it is evident from the condition No. 4 of that partnership deed. The petitioners through notice dated 26.11.1998 purported to have been given under the provisions of Section 43 of the Indian Partnership Act, 1932 dissolved the firm with effect from 30.11.1998 and according to the petitioners, that notice was served on the non -petitioners. Since in the partnership deed there was clause No. 11 to the effect that in case of any dispute between the partners or their legal representatives as to the interpretation of this deed or anything arising out of the business of the firm, the matter shall be referred to arbitration under the provisions of the Indian Arbitration Act, 1940 or any statutory substitution or modification thereof for the time being in force, therefore, this application was filed by the petitioners Under Section 11(5) of the Act of 1996 in order to settle all the disputes pertaining to the firm in question and it was prayed that Arbitrator be appointed. In that application, the learned District Judge, Jodhpur vide order dated 13.4.2000 appointed Shri Vasu Deo Vyas as Arbitrator and later on, appointment of Shri Vasu Deo Vyas as Arbitrator was challenged in the lower court and that matter is still pending. This is one of the aspects of the matter. Simultaneously, the petitioners filed an application Under Section 9 of the Act of 1996 stating inter -alia that even after the dissolution of the firm with effect from 30.11.1998, the non -petitioners are still carrying on business, though they should have stopped the business and all the accounts books pertaining to the firm in question should have been sealed and they should have been made available before the Arbitrator so that he could decide the matter rightly. It was further stated in the application that not only this, the non -petitioners are not ready even to prepare the list of all the properties whether movable and immovable belonging to the firm and are using the properties of the firm for their personal interest and benefits and thus, causing loss to the properties of the firm and besides this, they have not even filed reply to the proceedings pertaining to appointment of Arbitrator and thus, they are not cooperating. In these circumstances, there is apprehension that non -petitioners would misuse the properties of the firm and would cause loss to the firm and, therefore, it was prayed that a Receiver be appointed and all the properties including accounts books belonging to M/s Hotel Marudhar, Jodhpur and its Branch at Mount Abu be handed over to the Receiver and whole management of the business pertaining to the firm be also handed over to the Receiver and the Receiver be asked to prepare inventory lists and produce the same in the Court. This application which was filed by the petitioners Under Section 9 of the Act of 1996 was contested by the non -petitioners by filing a detailed reply. In the said reply, it was submitted by the non -petitioners that though there was clause No. 4 in the partnership deed that duration of the partnership shall be at Will, but the intention of the partners was not like that. It was further stated in the reply that the notice of dissolution of firm should have been given by the petitioners to all the partners of the firm, but the petitioners have not given the notice to all the partners of the firm and thus, the firm was not dissolved by the impugned notice. All the allegations pertaining to mismanagement of the business of the firm and misuse of the properties of the firm have been denied by the non -petitioners. It was further stated by the non -petitioners that the notice dated 26.11.1998 by which the firm was dissolved with effect from 30.11.1998 is also not valid and not according to law and it is wrong to say that the firm stands dissolved. It was further alleged in the reply that if the business of the firm is stopped, it would result in causing more loss to the firm. It was further submitted by the non -petitioners that the apprehension of the petitioners that properties of the firm are being misused is based on conjectures and surmises and the petitioners have no right to close the business of the firm and that the non -petitioners are ready to fulfil their duties and obligations, according to law. Hence, it was prayed by the non -petitioners that the application filed by the petitioners for appointment of Receiver be rejected. After hearing both the parties, the learned Addl. District Judge No. 1, Jodhpur through order dated 11.4.2000 rejected the prayer of the petitioners for appointment of Receiver and disposed of the application in the following manner: (1) That the objection of the non -petitioners that the impugned notice was not served on each of the partners is wrong. (2) That so far as the case of minor partners of the firm is concerned, they have been made partners for the purpose of gaining profit and not for loss. (3) That any of the partners of the firm has a right to move under the provisons of Act of 1996. (4) That the grounds, which have been taken by the petitioners for appointment of Receiver, are vague and uncertain, as it has not been established prima facie that the properties of the firm are in danger or are going to be transferred to some other person. (5) That as per the orders of the Hon'ble High Court, copies of accounts books upto the date of dissolution of the firm have been supplied to the petitioners. (6) That in case the Receiver is appointed, the business of the firm would certainly be affected and there is no prima facie case showing that if business of the firm is carried out, there will be danger to the properties of the firm. (7) That in these circumstances, the learned Addl. District Judge No. 1, Jodhpur found no prima facie case for appointment of Receiver. (8) But, the learned Addl. District Judge No. 1, Jodhpur came to the conclusion that it is also proper that in the proceedings pertaining to appointment of Arbitrator, a list of all the properties whether movable or immovable belonging to the firm in question be prepared so that nobody could make changes etc. in that and for that the learned Addl. District Judge No. 1, Jodhpur by the same impugned order, which is under challenge before this Court, appointed Shri Kishan Lal Prajapat as Commissioner and he was directed to prepare the list of all the properties belonging to the firm upto 14.4.2000 of both places at Mount Abu and Jodhpur in presence of both parties and to produce the same in the Court. The non -petitioners were further directed to maintain the accounts of the firm regularly and correctly and they would also submit information in the court quarterly. Aggrieved from the said order dated 11.4.2000 passed by the learned Addl. District Judge No. 1, Jodhpur, this appeal has been filed by the petitioners. In this appeal, the main contention made by the learned Counsel appearing for the petitioners is that accounts of the firm show that the firm is incurring loss and non -petitioners are putting the firm into loss intentionally and purposely with ulterior motive and, therefore, looking to the entire facts and circumstances of the present case, appointment of Receiver is must and thus, Receiver be appointed otherwise it would result in loss to the properties of the firm.
(3.) ON the other hand, the learned Counsel appearing for the non -petitioners suppoorted the impugned order passed by the learned Addl. District Judge No. 1, Jodhpur.;