Bombay High Court
Santosh S/O. Mukundilal Agrawal ... vs Shankarlal S/O. Harsukh Kabra And ... on 5 May, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
MISCELLANEOUS CIVIL APPLICATION NO.108/2016
1. Santosh s/o Mukundlal Agrawal,
aged 55 Yrs., Occu. Business.
2. Sandhya w/o Santosh Agrawal,
aged 53 Yrs., Occu. Business.
Both Nos.1 and 2, R/o behind NCC
Office, Alsi Plot, Akola, Tq. and
Distt. Akola.
ig ..Applicants.
..Versus..
1. Shankarlal s/o Harshukh Kabra,
aged 55 Yrs., Occu. Business.
2. Sangeeta s/o Shankarlal Kabra,
aged 53 Yrs., Occu. Business.
Both Nos.1 and 2 R/o Flat No.6,
Third Floor, Sai Krupa Apartment,
Behind Aaskashwani Center, Akola,
Tq. and Distt. Akola. ..Non-applicants.
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Shri M.G. Sarda Advocate for the applicants.
Shri N.R. Tekade, Advocate for the non-applicants.
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CORAM : Z.A. HAQ, J.
DATE : 5.5.2016
ORAL JUDGMENT
1. Heard Shri M.G. Sarda, advocate for the applicants and Shri N.R. Tekade,
advocate for the non-applicants.
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2. Rule. Rule made returnable forthwith.
3. The applicants have filed this application under Section 11 of the Arbitration
and Conciliation Act, 1996 praying that an Arbitrator be appointed to resolve the
dispute between the parties.
4.
Shri Tekade, learned advocate for the non-applicants has submitted that the
partnership deed on which the applicants rely is not registered and, therefore, the
claim as made by the applicants is untenable. It is further submitted that the alleged
partnership deed, the copy of which is produced on the record, is not a genuine
document and this is clear from the difference in printing in page no.1 and the other
pages of the document. It is further submitted that the claim as made by the
applicants is not borne out from the terms of the partnership deed.
5. With the assistance of the learned advocates for the respective parties, I
have examined the documents placed on the record of the application. I find that
the claim made by the applicants is a live claim and cannot be said to be a stale
claim. As far as the submission made on behalf of the applicants that the
partnership deed is not registered and, therefore, the matter cannot be referred to
the Arbitrator, cannot be accepted in view of the proposition laid down in the
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judgment given in the case of Prabhu Shankar Jaiswal v/s. Sheo Narain Jaiswal and
others reported in (1996) 11 SCC 225.
The submission made on behalf of the non-applicants about the
genuineness of the document will have to be considered by the learned Arbitrator
and this Court is not required to make a roving enquiry in the matter at this stage.
It is undisputed that this Court has jurisdiction and the application is
maintainable before this Court.
In my view the applicants have made out a case for exercise of jurisdiction
under Section 11(6) of the Arbitration and Conciliation Act, 1996.
6. Hence, the following order:
(i) Shri J.J. Chandurkar - advocate is appointed as an Arbitrator to resolve the
dispute between the parties.
(ii) The applicants and the non-applicants shall pay the fees of the learned
Arbitrator directly.
(iii) In addition, the applicants shall deposit Rs.25,000/- and the non-applicants
shall deposit Rs.25,000/- with the Registry of this Court within four weeks towards
security of fees of the learned Arbitrator.
This amount shall be kept with the Registry of this Court till the arbitration
proceedings culminate.
(iv) The applicants shall also deposit Rs.10,000/- (Rs. Ten Thousand Only) with
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the Registry of this Court within four weeks towards processing charges.
(v) The application is allowed in the above terms.
JUDGE
Tambaskar.
