IN THE HIGH COURT AT CALCUTTA Original Civil Jurisdiction Original Side A.P.No.140 of 2017 Monojit Das versus Sujit Roy Chowdhury & Anr.
For the petitioners:- Mr.Mukul Lahiri Mr.Prasenjit Burman MRS.Puja Beriwal Mr.Susovan Dey …Advocates For the Respondents:- Mr.Sharanya Chatterjee Mr.Aniruddha Bhattacharjee …Advocates Judgement On: - 27th April, 2017 I.P.MUKERJI, J.
A deed of partnership was executed on 13th March, 2014.
It was between the petitioner and the respondent Nos.1 and 2.
It was deemed to have commenced from 10th March, 2014.
These parties would carry on business through a partnership firm M/S.Shikha Enclave having its office at Uttar Bakshara, P.S.-Jagacha, District-Howrah.
In Clause-2 of this deed, the partnership was described as one at will, although in Clause-29, which is contradictory, it was stated that it could be “dissolved” by a deed of dissolution.
The death or retirement of any partner would not have the effect of dissolving the firm.
The partnership would be continued by the surviving partneRs.Each of the partneRs.would bring in Rs.6,00000/- as capital.
The nature of business to be carried on by the partnership was development of land and building and to act as architect, designer, contractor etc.Now, it appears from the averments made in the petition that one of the fiRs.ventures into which the partnership firm entered into was development of a piece of land measuring 5 cottahs situated at mouza Uttar Bakshara within the jurisdiction of Jagacha P.S.under Howrah Municipal Corporation belonging to the respondent No.2.
On 21st March, 2014 a development agreement was executed between the respondent No.2 and the partnership firm, whereunder the respondent No.2 empowered M/s Shikha Enclave to build a multi-storied building on the said plot of land.
A power attorney was executed by the respondent No.2 in favour of the petitioner and the respondent No.1 in connection with the development work.
It appears that disputes and differences arose between the parties arising out of operation of the firm’s account with Allahabad Bank, Howrah main branch.
According to the petitioner the respondent No.2 & 3 have carried on the business of partnership keeping him in the dark and have misappropriated partnership funds.
He, treating the partnership as one at will, issued a notice on 22nd November, 2016 under Section 43 of the Indian Partnership Act, dissolving the partnership.
The partnership agreements between the parties contain an arbitration clause, Clause-36 which is follows:“36.
Arbitration Clause:- That in case of dispute arising between the partners regarding the partnership business as the same shall be referred to the Arbitration as stipulated in the Arbitration and Conciliation Act, 1996.” According to the letter of the Chief Manager of the Bank dated 19th October, 2016 to the petitioner, the respondent wrote to the bank that the petitioner was expelled from the partnership and that it was reconstituted without him.
At the hearing of this application, it was contended by the respondents that the petitioner could not have dissolved the partnership treating it as one at will because of Clause-29 which according to the respondents meant that the partnership could be dissolved only by consent of the parties.
On 27th November, 2016 the petitioner invoked the arbitration clause by appointing an arbitrator, asking the respondents to concur in the appointment.
The respondents did not reply to this letter.
The petitioner states that the following disputes have arisen between the parties as tabulated in paragraph 33 of the petition.
“(i) Whether the respondents have violated the general duties of the partners in operation the Business Account of the Firm, avoiding the petitioner, in violation of the Clause 17 of the Deed of Partnership, wherein it has been clearly mentioned that the account shall be operated by the partners jointly; (ii) Whether the respondents have misappropriated funds from the business account of the partnership firm in operating the account in in an unauthorised manner; (iii) Whether the respondents have illegally misappropriated the partnership fund keeping the petitioner in dark regarding the business activities of the Firm; (iv) Whether the respondents have done an illegality allegedly expelling the petitioner from the partnership firm; (v) Whether the alleged expulsion of the petitioner from the Firm is violative to Clause 27 of the Deed of Partnership and Section 33 of the Indian Partnership Act, 1932; (vi) Whether the partnership firm has been dissolved on delivery of notice dated 22.11.2016 of the petitioner issued under Section 43 of the Indian Partnership Act, 1932; (vii) Whether the respondents are liable to pay the capital of the petitioner in the said partnership firm as on the date of dissolution of the partnership firm together with interest accrued thereon; (viii) Whether the petitioner is entitled to compensation from the respondents; (ix) Whether the revocation of registered General Power of Attorney in respect of the petitioner, by the respondent No.2, is bad in law and not binding upon the petitioner; (x) Whether the respondents are debarred from sale out the assets of the firm avoiding the petitioner;” Learned Counsel for the respondents took a most worthless point based on Section 69 of the Partnership Act.
It enacts that unless the firm is registered and shown to be so in the register of firms a partner does not have a right to institute a suit against the firm or any other person.
Admittedly, the firm is not registered.
Learned Counsel tried to contend that the petitioner being a partner of the firm could not maintain this action against the firm or its other partneRs.He completely overlooked Section 69 (3) (a) of the said Act which provides that Section 69 (1) was not applicable in any suit for dissolution of a firm or for accounts of a dissolved firm or any right or power to realise the property of a dissolved firm.
Now, this is exactly the dispute between the parties.
The petitioner claims that the partnership was one at will and hence dissolved by the said notice dated 22nd November, 2016.
The petitioner wants an account from the respondents of the funds of the partnership firm.
The respondents allege that the firm could not be dissolved in this way because of Clause-29 of the agreement which provides for dissolution by a deed.
Even if the contention of the respondents is correct the petitioner is entitled to sue for dissolution of the firm, accounts and for other reliefs.
The decisions cited by the learned Counsel for the respondents Jagadish Chandra Gupta v.
Kajaria Traders (India) LTD.reported in AIR1964SC1882 Delhi Development Authority v.
Kochhar Construction Work and Another reported in (1998) 8 SCC559and Mohd.
Monirul Hasan and others v.
Iftikar Ahmed and Others reported in 2000 Gauhati 108 pronounce the ratio that the bar under Section 69 (1) of the Partnership Act applies even to arbitration.
In my opinion, there is no dispute with this proposition but in view of Section 69 (3) (a) the bar does not apply where a partner sues for dissolution of the firm, accounts or claims a declaration that the firm stands dissolved or asks for any relief connected therewith.
For all those reasons, this is a fit case where the court should use its power to appoint an arbitrator.
In those circumstances, I direct that the disputes which are referred to in the petition and to be raised in the statement of claim and counter statement to be filed by the parties according to the direction given by the learned arbitrator are referred to arbitration.
I appoint Dr.H.K.
Saha Ray, Barrister-at-law as the arbitrator to adjudicate the said disputes, at a remuneration of Rs.15,000/- per sitting to be shared equally by the parties.
The learned Arbitrator may appoint his staff and fix their remuneration which shall also be equally borne by the parties.
He is requested to make and publish his award within six months of communication of this order.
This application is accordingly allowed.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.