Yasmin Khalique And Ors vs Mukhtar Alam
2023 Latest Caselaw 1984 Cal/2

OD-03
                                      ORDER SHEET
                            IN THE HIGH COURT AT CALCUTTA
                             CIVIL APPELLATE JURISDICTION
                                     ORIGINAL SIDE


                                      APO/70/2021
                                        WITH
                                      AP/359/2020
                               YASMIN KHALIQUE AND ORS
                                          VS
                                   MUKHTAR ALAM




BEFORE:
HON'BLE JUSTICE RAJASEKHAR MANTHA
HON'BLE JUSTICE SUPRATIM BHATTACHARYA
DATE: 10TH AUGUST 2023.



                                                                              APPEARANCE:
  Mr. A. Choudhury, Sr. Adv.; Mr. S. Haque, Adv.; Mr. M.I.A. Lodhi, Adv., appear for appellants.

 Mr. Jishnu Saha, Sr. Adv.; Mr. T. Quasimuddin, Adv.; Ms. Z. Tahur, Adv.; Mr. I. Saha, Adv., for
                                                                                    respondent.


1. THE COURT: APO/70/2021 is directed against the judgment dated March 15, 2021, passed by

   a Learned Single Bench upholding an Interim Award dated November 12, 2020, passed by the

   Sole Arbitrator. The facts of the case are already recorded in the said interim award and the

   judgment dated 15th March 2021 impugned herein. They are not repeated herein.

2. By the impugned interim Award, the learned Arbitrator, after a lengthy discussion, had found

   that the partnership dated April 1, 2006, between the appellants and the respondent was one, 'at

   will'. It was also found that the said partnership stood dissolved consequent upon notice dated

   November 17, 2018, issued by the respondent on the claimant.
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3. The learned Single Bench found that the said interim award called for absolutely no

   interference whatsoever.

4. This Court is otherwise in complete agreement with the views of the learned Single Bench.

5. There are, however, some observations made by the learned Arbitrator in paragraphs 5, 29, 30

   and 31 of the Award to the following effect:

           "Thus, if I hold that the partnership is a partnership at will and the same has been

           dissolved by their letter dated 17th November, 2018, the prayers for declaration and

           injunction made by the Claimants in their Statement of Facts

would be rendered

infructuous, such prayers having been made on the footing that the partnership has not

been dissolved and is subsisting. The claim for money award also would have to be

reduced only to the extent that the Claimants between them would be entitled to 50% of

the share of profit calculated till the date of dissolution i.e. 17th November, 2018.

Consequently, the scope of evidence in support of money claim would necessarily be

limited as well."

"Finally, in examining the allegation of bad faith, it may not be right to see the act of

issuing notice of dissolution on the part of the Respondent in isolation, but need to be

seen in the context of origin of the busines and extensive use of trade mark over the

years. Such practice is enmeshed in the history of the wider family beyond those who

were partners under the Partnership agreement dated 1st April, 2006. In brief, the

business was started by one Md. Musa way back in 1970s and on his death was

continued by his sons, their spouses and descendants, in differ4ent combination of the

constitution of partnership at various points of time over the years. By practice and by

convention, the family members of wider family became entitled to carry on the

business of Gul tobacco under the trade mark "Masa Ka Gul Super". This contention

was raised by the Respondent in course of hearing of the Section 9 application but was

rejected by the Learned Judge."

"Learned Counsel for the Respondent invited me to see the said family aspect, and

wide use of trade mark over the years from a different perspective to hold that on the

basis of provisions of Section 11 of the Partnership Act, an implied term is to be

imported in the agreement on the footing that such wide spread practice was

denotative of a course of dealing. Hence, by granting of licence to carry on the same

business as of the firm and use the trade mark by the Respondent in favour of his wife

was perfectly legal and nothing malafide about."

"In the light of such wide spread practice in the family tradition, as it were, the grant

of licence in favour of Shaheena Makhtar, wife of Respondent cannot be questioned on

any principle: What is good for goose is good for the gander."

6. The aforesaid observations were not germane or necessary for the purpose of the said "Interim

Award" dated 12th November 2020. The said observations of the Ld. Arbitrator shall therefore

not be deemed conclusive or binding on the parties at this stage and shall be subject to the final

award. The Arbitration shall proceed in accordance with law until final award is pronounced

and published.

7. The parties are at liberty to apply under the available laws for any other reliefs pursuant to the

dissolution of the partnership under the deed dated 1st April 2006.

8. With the aforesaid diretions. APO/70/2021 stands disposed of. All interim applications shall

also accordingly stand disposed of.

(RAJASEKHAR MANTHA, J)

(SUPRATIM BHATTACHARYA, J)