Jaswinder Singh Bhatia vs Nirmaljeet Kaur Bhatia
2009 Latest Caselaw 2638 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                 Date of Reserve: July 10, 2009
                                                    Date of Order: July 15, 2009

+OMP 94/2009
%                                                           15.07.2009
    Jaswinder Singh Bhatia                           ...Petitioner
    Through: Ms. Gurmeet Kaur and Mr. P.S. Guindi, Advocates

      Versus

      Nirmaljeet Kaur Bhatia                           ...Respondent
      Through: Mr. Naresh C. Sharma and Mr. Arvind Gupta, Advocates


      JUSTICE SHIV NARAYAN DHINGRA

1.    Whether reporters of local papers may be allowed to see the judgment?

2.    To be referred to the reporter or not?

3.    Whether judgment should be reported in Digest?


      JUDGMENT

1. This petition under Section 9 of the Arbitration & Conciliation Act, 1996

("the Act", for short) has been made by the petitioner praying inter alia that

respondent should be restrained from carrying on her new venture Bhatia

Sales Company.

2. It is submitted by the petitioner that that the petitioner and respondent

had a partnership agreement dated 30th June 2003 for running a partnership

firm in the name of Bhatia Sales Corporation at B-9, Community Centre,

Naraina. This firm had been carrying on the business of paints, hardware,

sanitary goods, welding materials and mill stores etc. The partnership deed

provided that only by mutual consent, a partner could start a new business or

open a new branch or change the name and nature of business. It is

submitted that earlier respondent‟s husband was the partner in the

OMP 94/2009 Jaswinder Singh Bhatia v. Nirmaljeet Singh Bhatia Page 1 Of 4 partnership and after death of her husband, she became the partner. The

shop No.B-9 where the business was being run was under the tenancy of the

partnership firm. The petitioner had come to know from some reliable sources

that sons of respondent namely Shri Tajinder Singh Bhatia and Shri

Tarandeep Singh Bhatia purchased the said property from the owner and

they, in collusion with the respondent floated another firm in the name and

style of „Bhatia Sales Company‟ with an intention of dispossessing the

petitioner from the property and finish the business of partnership firm

namely „Bhatia Sales Corporation‟. The trade being carried by Bhatia Sales

Company was similar as being carried out by Bhatia Sales Corporation.

3. It is submitted by learned counsel for petitioner that petitioner had filed

a civil suit against respondent and her sons seeking an injunction against

them from running the business in the name of „Bhatia Sales Company‟ at the

business premises of the firm. However, the suit was withdrawn with liberty

to file appropriate petition before the appropriate forum. Petitioner, therefore,

filed the present application under Section 9 relying on arbitration clause.

4. In response to this petition, it is submitted by respondent that

petitioner has concealed material facts from the Court. The petitioner and her

husband were earlier in joint business. However, on 22nd March 1993, by

mutual consent, the parties had separated from the business and the

petitioner started running business of paints, hardware, sanitary goods

separately at plot No.9, Shop No.2 Community Centre, Naraina Vihar, in the

name of New Delhi Paints whereas respondent‟s husband started his business

in the name and style of Bhatia Sales Corporation. Since the tenancy of the

premises was in the name of the partnership firm, both parties continued to

OMP 94/2009 Jaswinder Singh Bhatia v. Nirmaljeet Singh Bhatia Page 2 Of 4 sign the partnership deed so that the case of sub tenancy was not made out

by the landlord. The husband of respondent expired on 24th June 2003 and

thereafter parties again renewed the papers of the partnership deed only for

this purpose. The sons or the husband, however, negotiated with the owner of

shop No.B-9, Shopping Centre for purchase of the property and they

purchased the shop from the owner. After her sons purchased the shop from

the owner, they constituted a separate partnership firm in the name of

„Bhatia Sales Company‟ and started their own business at the shop purchased

by them. The respondent placed on record the partnership deed between her

two sons, the title deed of the shop in the name of her sons and the deed/

family settlement showing separation of business.

5. It is apparent from the documents placed on record by the respondent

that „Bhatia Sales Compan‟y was a different partnership with which

respondent had nothing to do. It was a partnership firm started by her two

sons. Presuming that Bhatia Sales Corporation was a partnership firm of

respondent and petitioner, this could not have placed a restraint on the sons

of respondent in starting another partnership firm. If the petitioner had any

vested rights in the name „Bhatia Sales Corporation‟, the petitioner could

have filed a suit for IPR against sons of respondent. A petition under Section 9

of the Act for restraining the operation of „Bhatia Sales Company‟, owned by

the sons of respondent is not maintainable.

6. It is also noteworthy that the petitioner had sent a notice to respondent

for invocation of the arbitration clause. This notice was duly replied by the

respondent. However, petitioner thereafter did not invoke the arbitration

clause neither the arbitrator was appointed nor it is mentioned that any step

OMP 94/2009 Jaswinder Singh Bhatia v. Nirmaljeet Singh Bhatia Page 3 Of 4 is taken or is going to be taken for appointment of an arbitrator for settlement

of disputes. The notice served by petitioner upon respondent on 7th February

2009 also shows that the business operation of Bhatia Sales Corporation was

being managed by respondent alone since it was alleged in the notice that it

was respondent who was in possession of books of accounts, cash book,

trading account, profit and loss account, balance sheet etc. The petitioner had

not placed on record any document showing that the petitioner had received

any part of the profits from Bhatia Sales Corporation neither petitioner had

placed on record his own income tax returns or his own income details

showing that he was receiving any profits from Bhatia Sales Corporation. It is

also clear that petitioner himself was doing business in the name of New Delhi

Paints. Had there been a partnership in existence restraining partners from

pursuing the same business, petitioner would not have been able to run

separate business in the name of New Delhi Paints. Under these

circumstances, I consider that this petition under Section 9 made by the

petitioner is a frivolous petition and is hereby dismissed with cost of

Rs.20,000/-.

July 15, 2009                                        SHIV NARAYAN DHINGRA J.
rd




OMP 94/2009          Jaswinder Singh Bhatia v. Nirmaljeet Singh Bhatia       Page 4 Of 4