Uttarakhand High Court
ARBAP/19/2017 on 5 August, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
ARBITRATION APPLICATION NO. 19 OF 2017
05TH AUGUST, 2022
BETWEEN:
M/s Raju Travels .....Applicant.
And
Kumaon Mandal Vikas Nigam Ltd. ....Respondent.
Counsel for the Applicant : Mr. Pawan Mishra, learned
counsel.
Counsel for the Respondent : Mr. Sandeep Kothari, learned
counsel.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
This application has been preferred in the name of
M/s Raju Travels, by Mr. Deepak Kumar Srivastava, who
claims to be the proprietor of the said firm under Section
11(6) of the Arbitration and Conciliation Act, 1996, to seek
appointment of an Arbitrator to adjudicate the disputes,
which have arisen between the parties in terms of their
agreement.
2. The applicant states that on 26.04.1997, an
agreement was executed between the parties with regard to
operating the leave travel concession tours for the employees
of the respondent-Kumaon Mandal Vikas Nigam, on
commission basis. Clause 19 of the agreement contains an
arbitration clause between the parties. The applicant claims
that he was entitled to commission @5% of the business
generated, which came to Rs.12,01,071.75/-, out of which
Rs.8,62,616.75/ was paid by the respondent till 20.03.1998.
However, the remaining amount, aggregating to
Rs.5,78,669.00/-, was not paid by the respondent.
Eventually, the respondent made payment of the amount of
Rs.5,78,669.00/- on 23.04.2015 after deducting TDS of
R.11,572.00/-. The applicant claims that the respondent was
obliged to pay interest and compensate the applicant for loss
of business for the period of 17 years. The applicant invoked
the arbitration agreement contained in Clause 19 of the
agreement dated 26.04.1997, vide notice dated 05.04.2016.
However, no arbitrator was appointed, and consequently, this
applicant was preferred by the applicant.
3. The response of the respondent is that the
agreement was with the partnership firm, M/s Raju Travels.
However, the present application has been preferred by Mr.
Deepak Kumar Srivastava, in his capacity as proprietor of the
said firm. It is argued that the proprietorship firm has no
legal existence, and no agreement was executed between the
proprietor and the respondent. It is also submitted that the
claim is stale and barred by limitation, inasmuch, as the
cause of action to claim the remaining amount arose in the
year 1998 itself. Merely because the respondent has made
payment on the time barred debt, it does not give a fresh
cause of action to the applicant to raise a claim for interest or
damages at this stage.
4. I have considered the submissions of the learned
counsels.
5. It is not in dispute that the applicant, in any event,
was one of the partners of M/s Raju Travels. Therefore,
whichever way the matter is looked at, he has the authority
to pursue the claim on behalf of M/s Raju Travels.
6. A partnership firm, and a proprietorship firm do not
have a juridical entity, and each and every partner of the firm
is entitled to sue, or be sued, in relation to a third party.
Therefore, the aforesaid objection of the respondent, in my
view, is not made out. Moreover, this aspect can be raised by
the respondent before the arbitral tribunal. So far as the
aspect of limitation is concerned, in my view, the same can
be adjudicated by the Arbitrator, and it is not necessary and
proper for me to adjudicate the same in these proceedings.
7. Accordingly, I allow the present application and
appoint Mr. R.D. Paliwal, Retd. District & Sessions Judge, R/o
CMT Colony, Dehriya, Rampur Road, Haldwani (Mobile
No.9412056353), to act as the sole Arbitrator to adjudicate
the disputes between the parties, under the Agreement dated
26.04.1997.
(VIPIN SANGHI, C.J.)
Dated: 05th August, 2022
NISHANT
