Delhi High Court
Manoj Kumar Bhargav vs Pawan Kumar Bhargav & Anr. on 7 August, 2013
Author: Rajiv Shakdher
* THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 19.07.2013.
Judgment delivered on: 07.08.2013
+ ARB.P. 235/2012
MANOJ KUMAR BHARGAV ......Petitioner
Vs
PAWAN KUMAR BHARGAV & ANR. .....Respondents
ADVOCATES WHO APPEARED IN THIS CASE:
For the Petitioner: Mr. Sanjay Mishra, Advocate.
For the Respondents: Mr Pawan Kumar, Respondent no. 1 in person.
Mr S.K. Nanda, Advocate for respondent no. 2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J.
1. The petitioner seeks appointment of an arbitrator under Section 11 of
the Arbitration & Conciliation Act, 1996 (in short the Act) in the
background of the following brief facts, which are essential for the disposal
of the captioned petition.
2. The petitioner alognwith respondent nos. 1 and 2, who are his
siblings, are partners in a firm bearing the name Messers Bhargav Bhatta
Company (hereinafter referred to as the firm). The said firm operates and
manages a brick kiln situate at Jhajjar, in the Bahadurgarh district, in the
State of Haryana.
3. It appears that respondent no. 2 being the youngest of the three
partners was introduced into the business at the say so of the father of the
parties herein, i.e., Mr. Jagdish Chander Sharma. Consequently, a new
partnership deed was executed between the parties, on 29.06.1999.
3.1 As per the averments made in the petition, the firm is in financial
distress, and if, the version given by the petitioner is to be believed, the
respondents are responsible for the same as they are alleged to have illegally
drawn funds from the bank accounts of the firm and misappropriated the
same.
3.2 It is, therefore, the case of the petitioner that the firm is in litigation
with its banker, Punjab & Sind Bank, before various courts and as also the
Debt Recovery Tribunal, at Delhi.
3.3 It is also averred that because of inter se disputes between the parties,
and on account of various civil and criminal complaints filed against each
other, the father, i.e., Mr. Jagdish Chander Sharma, stepped-in to settle the
disputes obtaining amongst the parties.
4. As a consequence, a family settlement was drawn up and executed
between the parties herein on 07.11.2000, whereby, assets and liabilities
referred to therein, were divided between the parties herein; which included
the brick kiln business at Bahadurgarh.
4.1 It is alleged by the petitioner herein that contrary to the family
settlement of 07.11.2000, respondent no. 2, by employing misrepresentation
obtained a No Objection Certificate (NOC) from the bank, which had
funded the cost of land, on which the brick kiln was situate. It is alleged that
respondent no. 2 has transferred the rights in the land on which the brick kiln
is constructed to one of his close friends.
4.2 Apparently, the petitioner became aware of the same while seeking to
file a reply to an application in a civil suit filed by respondent no. 1 being:
Civil Suit No. 137/2008 filed in the District Court, Patiala House Courts,
(though in the petition it has been averred that the civil suit was instituted in
the District Court, Saket) at New Delhi.
4.3 To be noted, the said suit was instituted by respondent no. 1 in 2008,
in which, the petitioner, (who is impleaded as defendant no. 2), has entered
appearance and filed a written statement. The reliefs sought for in the suit
(which is a suit framed as a suit for permanent injunction), are pivoted on
the family settlement of 07.11.2000.
5. Undeniably, the petitioner who is impleaded as defendant no. 2 in the
aforementioned suit, has not only filed a written statement but also failed to
move an application under Section 8 of the Act. A perusal of the averments
made in the written statement would show that there is no averment
whatsoever with regard to the maintainability of the suit in view of an
arbitration agreement obtaining between the parties which, as averred in the
captioned petition, finds mention in clause 17 of the partnership deed dated
26.06.1999.
6. Pertinently, respondent no. 1, who is the plaintiff in the suit, has not
filed any reply to the captioned petition. As a matter of fact, during the
course of hearing, quite curiously, respondent no. 1 stated that he had no
objection to the matter being referred to an arbitrator. This aspect is
recorded by me in the proceeding dated 19.07.2013, when judgment in the
matter was reserved.
7. In view of the fact that the subject matter of the dispute is the same,
and given the fact that the petitioner has filed his written statement in the
suit instituted by respondent no. 1, I am not inclined to grant the reliefs
prayed for by the petitioner. The petitioner appears to have given up his
right to insist qua the dispute raised in the captioned petition, to be settled,
by parties, taking recourse to arbitration.
8. For the reasons given hereinabove, the petition is dismissed. Parties
are, however, left to bear their own costs.
RAJIV SHAKDHER, J.
AUGUST 07,2013
kk
