Gujarat High Court
Hareshkumar Narandas Khubchandani vs M/S Ganesh Aloo Bhandar on 12 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2185 of 2024
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HARESHKUMAR NARANDAS KHUBCHANDANI
Versus
M/S GANESH ALOO BHANDAR
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Appearance:
M/S.VYAS ASSOCIATES(1559) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 12/02/2024
ORAL ORDER
1. The present petition is filed by the petitioner - original
defendant by challenging the order dated 26.10.2023 passed
in Special Execution Petition No.10 of 2018 below Exh.23
application by the Addl. Civil Judge, Jamnagar, whereby the
said application was rejected, which is for seeking stay of the
execution proceeding.
2. Brief facts of the case as per the case of the petitioner
in this petition are as such that the petitioner and his
brother, Shri Ashokkumar Narandas Khubchandani, and
others were partners of a partnership firm in the name and
style of M/s. Ashokkumar Narandas and Co. at Jamnagar.
For reasons best known to Shri Ashokkumar Narandas
Khubchandani and other partners, the petitioner was ousted
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from the said partnership firm on 20.9.2003. Thereafter,
citing unsettled accounts between the partners, respondent-
original plaintiff had preferred Special Civil Suit No.81 of
2006 inter alia seeking recovery of a sum of Rs. 5,26,828.37/-
from the petitioner-original defendant. The petitioner had
appeared and contested the said suit by filing his reply at
Exh.36. It is further the case of the petitioner in this
petition that, there have been other partnership firms
running between the petitioner and his brother Shri
Ashokkumar Narandas Khubchandani, which also involve
other members. There have been inter-se disputes between
the partners even prior to filing of Regular Civil Suit No.
935 of 2006 inasmuch as with regard to another partnership
firm in the name and style of M/s. Ganesh Cold Storage Co.,
the petitioner had preferred a suit being Special Civil Suit
No.95 of 2005 before the Court of the Civil Judge (S.D.) at
Jamnagar seeking dissolution of the said partnership firm, in
view of the fact that the partners of the said firm, including
the petitioner's brother were depriving the petitioner from the
profits generated from the business and further diverting the
funds of the said firm to the respondent firm as well as M/s.
Ganesh Aloo Bhandar, in which the petitioner also was one
of the partners. It is further the case of the petitioner in
this petition that in view of the fact that the partnership
deed concerning the firm M/s. Ganesh Cold Storage Co. had
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an arbitration clause, the defendants in the said suit filed an
application under Section of the Arbitration and Conciliation
Act, 1996 for referring the dispute to Arbitration. Vide order
dated 5.9.2005, the 2nd Additional Civil Judge, Jamnagar
referred the parties to Arbitration. However, since there were
disputes with regard to nominating the Arbitrator, the
petitioner approached this Court seeking appointment of an
Arbitrator by preferring Arbitration Petition No.86 of 2006.
Vide order dated 2.3.2007, this Court was pleased to appoint
Sarda and Co. (Chartered Accountants) to settle the disputes
between the parties.
It is further the case of the petitioner in this petition
that though the petitioner has made endeavors to see that
the Arbitration process commences by approaching the
aforementioned Chartered Accountants office, the same has
not yet commenced. Despite knowing about the existence and
pendency of disputes, the respondent firm through its partner/
s preferred Special Execution Petition No.10 of 2018 seeking
execution of the judgment and decree dated 28.2.2011 passed
in Special Civil Suit No.81 of 2006. The petitioner contested
the said execution proceeding by filing his reply. Further, the
petitioner also filed an application at Exh. 23 seeking stay of
the execution proceedings, however without considering the
relevant materials and evidence on record, the same came to
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be rejected by the Additional Civil Judge, Jamnagar vide
order dated 26.10.2023. Hence the present petition is
preferred.
3. Heard Mr. Pratik K. Khubchandani, learned advocate
for M/s. Vyas Associates for the petitioner.
4. Mr. Pratik K. Khubchandani, learned advocate for M/s.
Vyas Associates for the petitioner has drawn the attention of
this Court towards the impugned order and has submitted
that another suit is filed in cognate matter i.e Special Civil
Suit No.95 of 2005, whereby prayers are sought for
dissolution of the said partnership firm on the ground that
the petitioner was deprived from the profits generated from
the business, and further diverting the funds of the said firm
to the respondent firm as well as M/s. Ganesh Aloo Bhandar,
in which the petitioner was also one of the partners. He has
also submitted that thereafter, the arbitrator viz., M/s Sarda
and Company (Chargered Accountants) was also appointed
pursuant to the proceedings i.e. Arbitration Petition No.86 of
2006 by order dated 02.03.2007. Therefore, he has further
submitted that in view of this factual background, the court
below has erred in holding that petitioner has not produced
any clear status or not stated in the application about the
status of arbitration proceeding in clear terms and this
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finding is incorrect as the petitioner in his application at
Exh.23 has, in clear terms, indicated that there is no report
yet with regard to arbitration proceedings received.
Furthermore, he has submitted that the petitioner has shown
sufficient reasons in the application below Exh.23, in order to
obtain stay of the execution proceeding, which is required to
be stayed in order to achieve justice or deter the misuse of
abuse of process of law, but the trial court has not dealt
with any of the aspect and has passed such erroneous order
in mechanical order and, therefore, the present petition is
required to be allowed by exercising powers under Article 227
of the Constitution of India.
5. I have considered the submissions made at the bar. I
have also perused the application filed below Exh.23, whereby
the application title seeking to stay the execution proceeding
in Regular Execution Petition No.537 of 2018 is pending
before the Addl. Civil Judge, Jamnagar, but under which
provision, the said application is filed, it is not mentioned by
the learned advocate, though it is signed by the petitioner.
The trial court has rightly taken into consideration this
aspect. Moreover, it also transpires that no documentary
evidence along with this application is produced on record
with regard to arbitration proceeding except the bald
averments made in the application, which is also not very
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specific or categorically stated in the application. Moreover,
how and in which manner, such proceeding is connected with
the proceeding of execution proceeding and in absence of such
proceeding, how the execution proceeding will get affected, it
is also not averrred specifically in the application. Moreover,
considering all these aspects, the only document is produced
at Exh.24/1 to show that this Court has passed an order for
appointment of arbitrator, and pursuant to that order, the
arbitrator was appointed. Prima facie, there is no material
available, which needs any interference by this Court, more
particularly, considering the order passed by the trial court,
whereby the trial court has assigned the reason that no
proper explanation is given in the application and more
particularly, the application itself is not maintainable in the
eyes of law and such application, which is filed in the
execution proceeding, is going on since the year 2018. At
such belated state i.e. in the year 2023, it also indicates the
intention of the party to prolong the proceeding of execution.
The reasoning assigned by the trial court, though it is brief,
but it is satisfactory and I am of the opinion that I found
that there is no reason committed by the trial court in the
eyes of law or error of jurisdiction while rejecting the
application. I found no reason to interfere in the impugned
order passed by the trial court by exercising my power under
Article 227 of the Constitution of India, more particularly,
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considering the judgment of the Hon'ble Apex in the case of
Garments Craft vs. Prakash Chand Goel reported in (2022) 4
SCC 181.
6. In view of the above, the present petition is dismissed.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
