Raj Kumar Kapur vs Krishan Kumar Kapur
1997 Latest Caselaw 942 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) This Order shall dispose of an application (I.A.No.6000/96) filed on behalf of Apollo Exports (Pvt.) Ltd. (hereinafter referred to as "the applicant") under Order Viii Rule 9 read with Section 151 of the Code of the Civil Procedure, 1908 (hereinafter referred to as `the Code of Civil Procedure').

(2) The facts relevant for the disposal of the above mentioned application briefly stated are that Shri Raj Kumar Kapur and Shri Maharaj Kumar Kapur (hereinafter referred to as `the petitioners') have filed a petition (Suit No.630-A/82) under Section 20 of the Arbitration Act, 1940 (hereinafter referred to as `the Act') against their brothers, namely, Shri Krishan Kumar Kapur and Shri Ram Kumar Kapur (respondent No. 1 and 2) and Smt. Vimal Kapur (respondent No.3), widow of their deceased brother. It is alleged that there was a Partnership Agreement between the parties dated the 10th March, 1966 for carrying on the business in the name of `Kapur Brothers'. Among the various properties of the firm, one is a showroom at Northstand, Brabourne Stadium, bearing No.87-E, Veer Nariman Road, Bombay. Various disputes, as set out in Para 13 of the petition, arose between the parties. The Partnership Deed dated the 10th March, 1966 contained an arbitration clause (Clause 18) on the basis of which the two petitioners, namely, Shri Raj Kumar Kapur and Shri Maharaj Kumar Kapur have filed the present petition (Suit No.630-A/82) under Section 20 of the Act with the prayer that the Partnership Deed dated the 10th March, 1966, containing the arbitration clause be directed to be filed in the Court and arbitrator or arbitrators be appointed by this Court to enter upon the reference and a decree be passed in terms of the award.

(3) By an order dated the 4th April, 1983, Mr. Justice Prithvi Raj, a retired Judge of this Court was appointed as an Arbitrator. By the same order, parties were also restrained from alienating, transferring or parting with possession of any of the assets belonging to the partnership firm or in their possession.

(4) Prior to the filing of the above mentioned petition under Section 20 of the Act, an `agency agreement' was entered into between `Kapur Brothers' and the Apollo Exports Pvt. Ltd. (applicant) on 23rd August, 1979 and the applicant was put in possession subject to payment of commission to the partnership firm (subject to a minimum of Rs.3,500.00 per month). The `agency agreement' referred to above, was initially for a period of ten years. Further renewal was to be on mutually agreed terms. The above said period of 10 years expired on 23rd August, 1989. Soon after 23rd August, 1979, there were disputes between the partners of `Kapur Brothers' and on 31.7.1980, the petitioners, Shri Raj Kumar Kapur and Shri Maharaj Kumar Kapur, with a view to ensure that the agreement was not renewed beyond 23rd August, 1989, sent a telegram to the applicant to the following effect:- "REGARDING our Agency arrangements with you none of the partners of Kapur Brothers singularly can modify the terms of the Agency. Withhold payment of commission for July, 1980 and onwards stop. Await instructions through letter which follows."

(5) Thereafter, the petitioners wrote a letter dated the 2nd August, 1980 to the applicant stating that there was a dispute between the partners of `Kapur Brothers' inter-se and therefore all payments towards commission be withheld till further intimation. They also stated that none of the partners could singularly had any authority to modify the terms contained in the letter dated 23rd August, 1979. In the above said communication it was also stated that if any change or modification was to be made, it must be accompanied by a letter of concurrence of all the partners. In reply the applicant acknowledged the above said letter on 6.8.1980 and admitted that there was no change in the terms of agreement.

(6) On 25.5.1989, the petitioners sent a notice to the applicant stating that as early as on 4th April, 1983, this Court by its order in S.No.630-A/82 had restrained the three partners from alienating encumbering or transferring the property. They also informed the applicant to deal concurrently with all the partners. This notice further mentioned that Smt. Dhan Devi Kapur, one of the partners had expired on 12.4.1980. It also stated that the two petitioners had not made up their mind whether to renew the `agency agreement' or not with the applicant beyond 23rd August, 1989.

(7) In spite of all this, on 27th September, 1989, the `agency agreement' was renewed by the applicant and the 2nd respondent without the concurrence of the petitioners. This was achieved by the applicant by sending a letter addressed to the second respondent, appointing Kapur Brothers as special Agents for a further period of five years. It was mentioned in that letter that the minimum commission would be Rs.10,000.00 per month, payable by the applicant to the partnership. The copy of the extended agreement was neither provided to the petitioners nor to the other partners of `Kapur Brothers'.

(8) As there was no change in the attitude of the applicant, the petitioners filed an application (I.A.No.3577/90) for appointment of petitioner No.1 as a Receiver under Section 41 read with Schedule Ii of the Act, read with Order 40 Rule 1 read with Section 151 Code of Civil Procedure, on 7.5.1990. An interim order was passed on 8.5.1990 in the above said application restraining Shri Ram Kumar Kapur (respondent No.1) from realising the amount of commission from the applicant. On 11th October, 1990, it was further directed that Shri Ram Kumar Kapur (respondent No.2) would deposit into the Court Rs.9,900.00 per month, being the amount payable by the applicant. On 19th February, 1992, this Court passed an Order directing that the commission of Rs.10,000.00 per month be deposited in the Court from 1st March, 1992 onwards regularly by 15th of each succeeding month.

(9) On 6th April, 1992, the petitioners filed yet another `interlocutory application' (I.A.3443/92) under Section 151 Code of Civil Procedure seeking directions inter-alia to the applicant and also to Shri Ram Kapur (respondent No.2) not to change, renew or alter the `agency agreement' beyond 23rd August, 1994. Notice of the above said application was issued and on 30.4.1992, the following Order was passed in the above said application by the learned Predecessor of this Court:- "There is no opposition to the prayer in the application being granted. Accordingly I order that Shri Ram Kumar Kapur and M/s Apollo Exports Pvt. Ltd. will not alter, change or renew the current agency agreement without the permission of this Court. Counsel for Shri Ram Kapur will file a copy of the existing agreement on record of this suit within four weeks from today."

(10) The above order prohibited the renewal of the `agency agreement' with the applicant beyond 23rd August, 1994. On 19.4.1994, i.e., well before 23rd August, 1994, the petitioners filed an interlocutory application (I.A.3720/94) with the prayer that Shri Ram Kumar Kapur (respondent No.2) and the applicant be directed to stop the operation of the special `Sub Agency Agreement' from the premises of the partnership firm from the midnight of the 22nd August, 1994 when the tenure of the said agreement was to end. Reply to the above mentioned application (I.A. 3720/94) has been filed on behalf of respondent No.2 and also on behalf of the applicant. A rejoinder to the reply filed on behalf of the applicant has been filed on behalf of the petitioners on 24.2.1995.

(11) Vide the above mentioned application (I.A.No.6000/96), it has been requested by the applicant that the applicant be allowed to file a sur-rejoinder to the rejoinder dated the 22nd February, 1995 (filed on 24th February, 1995) of the petitioners, representing that the new facts pleaded by the petitioners for the first time in the rejoinder were not there in the application dated 18.10.1994, (I.A.3720/94). A reply to the above mentioned application (I.A. 6000/96) has been filed on behalf of the petitioners/non-applicants, strongly opposing the prayer on the ground that the same has been made solely with a view to delay the proceedings. It has been prayed in the reply that the present application, filed by the applicant, be dismissed with exemplary costs.

(12) I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. As already stated vide above mentioned application, filed by the applicant (Apollo Export Pvt. Ltd.) under Order Viii Rule 9 read with Section 151 Code of Civil Procedure, it has been prayed that the applicant be allowed to file a sur-rejoinder to the rejoinder dated the 22ns February, 1995, filed by the petitioners. The learned counsel for the applicant during the course of the arguments stated that the necessity for filing sur-rejoinder to the rejoinder has arisen as the petitioners in the rejoinder dated the 22nd February, 1995 have introduced `new facts'. On the other hand, the learned counsel for the petitioners stated that in the rejoinder dated the 22nd February, 1995, filed by the petitioners in I.A.3720/94 no `new facts' have been introduced by the petitioners and the facts stated therein were already in the knowledge of the applicant and that the present application has been filed by the applicant solely with the object to delay the proceedings.

(13) After hearing the learned counsel for the parties and also after taking into consideration the documents/material on record, in my opinion, the prayer made vide above mentioned application (I.A.6000/96) is devoid of substance because in the first place no details of the `new facts' alleged to have been introduced by the petitioners in the rejoinder have been given in Para 4 of the application. Only a sweeping averment has been made that the petitioners have pleaded `new facts' without giving any details thereof as to which are those `new facts' which have been pleaded by the petitioners in the rejoinder as a result of which it has become necessary for the applicant to file a sur-rejoinder. In the absence of the details of the alleged `new facts', it is somewhat difficult to accede to the request of the applicant. Secondly, the above mentioned application is an `interlocutory application' within the meaning of Chaper Ix of the Delhi High Court (Original Side) Rules, 1967 (hereinafter referred to as `the Original Side Rules'). In terms of the provisions of the Original Side Rules, contained in Chapter Ix, it is obligatory that there has to be a supporting affidavit stating clearly the grounds and the facts on which the application is based. From a perusal of the application, it is apparent that neither the application nor the supporting affidavit has been signed by the applicant. The supporting affidavit and the application both have been signed not by the applicant but by Shri Narender Singh Jain, counsel for the applicant. It is the party filing the application is supposed to have the knowledge of the facts and not the counsel representing the party. The present `interlocutory application', filed by the applicant, in my opinion, deserves to be rejected on the ground of non-compliance of the above said statutory provisions of the Original Side Rules. Thirdly, the rejoinder to the reply to I.A.3720/94 was filed by the petitioners on 24.2.1995 with copy to all concerned. The present application has been filed on behalf of the applicant on 29.6.1996, i.e., after a lapse of more than 16 months. There is nothing on record to explain the inordinate delay on the part of the applicant in filing the above said application. The unexplained inordinate delay, in filing the above said application, lends support to the contention of the learned counsel for the petitioners that the above said application has been filed with the ulterior motive of causing delay in the proceedings.

(14) For the foregoing reasons, the application (I.A.No.6000/96) is dismissed with costs. Costs of the application quantified at Rs.2,500.00 (Rs.Two thousand and five hundred only) and awarded to the petitioners. It may be mentioned here that my discussions are solely for the purposes of the disposal of the above mentioned `interlocutory application' and the same have no bearing on the merits of the case which would be decided on the evidence which may be led by both the parties in support of their respective contentions at the appropriate stage. I.A. stands disposed of in above terms.