Mr. Mohammad Rafiq, J. - (1.) This application under Section 11 of the Arbitration and Conciliation Act, 1996(for short 'the Act') has been filed by Vijay Kumar Data (HUF) through himself as its Karta and Daya Kishan Data S/o. Shri Niranjan Lal Data, inter alia with the prayer that either Shri P.K. Bhatia, retired District and Sessions Judge or any other person be appointed as Sole Arbitrator to resolve the dispute between the applicants and non-applicants in accordance with the provisions of law. Brief facts as averred in the application are that a partnership was constituted in the name and style of M/s. Vijay Tin Industries amongst Daya Kishan Data, Mrs. Gayatri Devi and Mrs. Chemeli Devi. A partnership deed dated 16.04.1982 was executed amongst them having 30%, 45% and 25% share respectively in the net profits and losses of the partnership business. The firm was to carry business of manufacturing, fabricating, assembling, sale and supply of all kinds of classes of Tin Containers and its operations. The principal place of business was at Khairthal, District Alwar. Partnership was at will and all the partners had predetermined shares in profits and losses of the firm. Smt. Gayatri Devi Data retired from the partnership firm vide deed dated 03.04.2002 and in her place, Vijay Kumar Data(HUF) through himself as its karta, was inducted as a partner w.e.f. 03.04.2002 having share of 45% in the profits and losses of the said firm. Terms and conditions of new partnership deed was modified/altered from time to time. On retirement of Smt. Chameli Devi on 01.04.2007, fresh partnership deed dated 11.05.2007 was executed amongst Applicant no. 1 and applicant no. 2 each having equal share of 50% in profits and losses of the firm. Thereafter, yet another partnership deed dated 01.01.2008 was executed amongst Daya Kishan Data; Vijay Kumar Data(as karta of his HUF); Babu Lal Data and Ajay Kumar Data each having equal share of 25% in profits and losses of the firm. According to the applicants, they were made to sign partnership deed dated 01.04.2008 as witnesses with the understanding that all the assets of the firm, tangible and intangible, will be valued at market rates and their share so arrived at will be valued at market rates and the shares of the applicants so arrived at will be credited in their accounts. Non-applicants, however, utterly failed to determine and credit it to the account of the applicants. The applicants made several requests to the firm and continuing partners to value the assets both tangible and intangible and provide statement of the accounts. However, the non-applicants did not respond to the same.
(2.) Mr. Amol Vyas, learned counsel for the applicant submitted that as per estimate of the applicants, total tangible, intangible, movable and immovable assets of the firm stood at Rs.one crore and each of them is entitled to 50% share of it. When the non-applicants failed to settle the accounts of the applicants, a legal notice dated 04.12.2010 was served on the non-applicants, requiring them to repay the aforesaid amount of Rs.one crore along with interest @ 18% p.a. as damages for unnecessary withholding the amount due without any rhyme and reason. Aforesaid notice clearly stated that in case the non-applicants did not pay the aforesaid amount, the applicant will be constrained to invoke arbitration clause as envisaged in Clause 9 of partnership deed and seek reference of the dispute to the arbitrator. The non-applicants chose not to reply the repeated requests of the applicants. It is argued that a dispute amongst the partners of the firm has arisen and as per Clause 9 of the partnership deed dated 01.01.2008 and 01.04.2008, the same is required to be referred to the sole arbitrator in terms of provisions of the Act. The applicants, therefore, again served notice as per provisions of Section 11(5) of the Act through their counsel on 22.12.2010 upon the non-applicants suggesting name of Mr. P.K. Bhatia, retired District and Sessions Judge as sole arbitrator to resolve the dispute between the parties. Since non-applicants have failed to refer the dispute to sole arbitrator, therefore, present application has been filed by the applicants.
(3.) Learned counsel for the applicants argued that Clause 9 of the partnership deed dated 01.01.2008 and 01.04.2008 provides that in case of disputes or differences between the partners in respect of the terms and conditions referred to in the deed, the same shall be resolved through Arbitration Act of India.;