| SooperKanoon Citation | sooperkanoon.com/1174971 |
| Court | Mumbai High Court |
| Decided On | Aug-22-2014 |
| Case Number | Arbitration Petition No. 1211 of 2013 |
| Judge | R.D. DHANUKA |
| Appellant | Minochar @ Minoo Aspandyar Irani |
| Respondent | Deenyar Sheriar Jehani and Others |
1. By this petition filed under section 9 of the Arbitration and Conciliation Act, 1996 the petitioner seeks appointment of Court Receiver of the business and assets of the firm of M/s. Leopold Cafe and Stores, 'Cafe New York', 'Cafe Universal', 'Coffee House', ' Leostouch' and 'Leo's Boulangerie' including their bank accounts, licences, trade marks etc. and seeks other interim measures. Some of the relevant facts for the purpose of deciding this petition are as under :-
2. Sometimes in the year 1975 the petitioner was admitted as a partner in the firm known as M/s. Leopold Cafe and Stores (hereinafter referred to as the suit firm). Respondent nos. 1 to 5 were subsequently introduced to the said firm by the petitioner as partners. The respondent no.6 then a minor was also admitted as a partner by the petitioner. Respondent no.6 became major on 30th September 1997 and continued as a partner of the suit firm. Duration of the suit firm is at Will under the partnership deed. Clause 7 of the deed provides that each partners shall have free access to the books of accounts at all times and shall be at liberty to make such extracts there-from as may be thought fit by himself or his agent. Clause 8 of the partnership deed provided that the respondent no.1 to respondent no.4 were working partners and were actively engaged in conducting the affairs of the business of the suit firm. Clause 9 (a) provided for salary to be paid to the working partners. Clause 9 (d) provided that by mutual agreement in writing or by executing supplementary deed or any other deed, the salary, remuneration, bonus or commission payable to the partners may be increased or deceased or modified.
3. Under the said partnership deed, the petitioner is entitled to share in the net profit at 15%. Respondent no.6 is entitled to net profit at 10%. The remaining 75% is shared by the respondent no.1 to 5 in the ratio set-out in clause 11 of the partnership deed. Clause 13 provided that respondent no.6 on his attaining majority shall be full fledged partner in the business of the suit firm irrespective of the fact that any fresh deed of partnership is drawn up and on attaining majority, he will have right to actively participate in the business of the firm.
4. Clause 17 of the partnership provided that in the event of any of the partners acquiring any other assets, properties etc. in the individual or joint names but with the funds and investments of the partnership business then in that event the same shall belong to the suit firm. Clause 22 provided that each of the partner shall diligently attend to the business of the suit firm.
5. It is case of the petitioner that respondent no.3 is an Iranian citizen and often visits Canada and while in India he is looking after the business of Cafe Universal situate at Fort, Mumbai. Respondent no.4 is also an Iranian citizen and has settled in Canada and visits India only for a short duration every year. Respondent no.5 is wife of respondent no.3 and is housewife. It is case of the petitioner that respondent nos. 1 and 2 are operating and running the business of the suit firm to the exclusion of the petitioner and respondent no.6 and other respondents.
6. It is not in dispute that neither the petitioner nor any of the respondents have given any notice for dissolution of the suit firm and that the firm is not dissolved. Mr. Tulzapurkar, learned senior counsel for the petitioner invited my attention to various alleged breaches committed by respondent nos. 1 to 5 of their obligations under the partnership deed in support of his submission that the interim measures as prayed in the arbitration petition shall be granted by this court. My attention is invited to various paragraphs of the arbitration petition in which the petitioner has specifically alleged about such breaches.
7. Learned senior counsel submitted that though under clause 7 of the partnership deed, each partner is entitled to have free access to the usual books of accounts and to make such extracts there-from as he thinks fit, the respondent no. 1 to 5 have refused to grant inspection of the books of accounts of the suit firm to the petitioner and had merely handed over copy of the balance-sheet for the period 2003â2007. It is submitted that petitioner and respondent no.6 by their advocates letter dated 31st March, 2008 called upon the respondent nos.1 and 2 to give inspection and furnish copies of books of accounts of the suit firm. Learned senior counsel invited my attention to some of the correspondence exchanged between the advocates of the petitioner, respondent no.6 on one hand and respondent nos. 1 and 2 on the other hand. It is submitted that on perusal of the office of balance-sheet, profit and loss accounts of the suit firm for the year 2003 to 2007, petitioner revealed that the turnover reflected in the final accounts was less than half of what the actual turnover of the suit firm was. Various expenses are wrongly shown in the accounts and as a result thereof, the profit of the suit firm is substantially reduced. The petitioner came to know that though under the partnership deed, the partners were entitled to salary/remuneration at Rs.4,80,000/-, a sum of Rs.36 lacs was debited to the account of the suit firm towards payment of salary/remuneration. Remuneration of respondent mos. 1 to 4 was increased from Rs.10,000/- per month to Rs.70,000/- per month and thereafter to Rs.1,00,000/- per month without consent and knowledge of the petitioner.
8. It is submitted that though the respondent nos. 1 to 5 initially refused to give inspection, the petitioner was then given only partial inspection and was refused to be given copies of the accounts and refused to answer any queries and to furnish documents.
9. It is submitted that finally the petitioner and the respondent no.6 through their advocates by letter dated 26th August, 2013 called upon the respondent nos. 1 to 5 to furnish copies of the audited balance-sheet, profit and loss account, capital accounts etc. for last 5 years of the suit firm. It is case of the petitioner that respondent no.5 however through their advocates' reply dated 3rd September, 2013 falsely alleged that the petitioner and the respondent no.6 were harassing the respondent nos. 1 to 5 and several chances were given to the petitioner and respondent no.6 to inspect the documents.
10. Mr. Tulzapurkar, learned senior counsel submits that the respondent nos. 1 to 5 have fabricated the alleged supplementary deed dated 19th January 2006 thereby unilaterally increased the salary/remuneration payable to respondent nos.1 to 5. The petitioner and the respondent no.6 did not sign any such deed. The respondent nos. 1 to 5 thus could not execute any such supplementary deed and could not have increased the salary/remuneration in breach of clause 9(d) of the partnership deed.
11. It is submitted by the learned senior counsel that the respondent nos 1 to 5 are not permitting respondent no.6 though he is working partner and is entitled to actively participate in the business of the suit firm. He is not even allowed to enter the restaurant premises of the suit firm. Respondent nos. 1 to 5 have illegally excluded the petitioner and the respondent no.6 from the partnership business and affairs.
12. It is submitted by the learned senior counsel that that suit firm is popularly known as Leo's for running its pub at Mezzanine floor of Rustom Manzil. It is submitted that the respondent nos. 1 to 3 have diverted the moneys of the suit firm and have used such money for the acquisition and running of the other restaurant viz. 'Cafe New York', Cafe Universal', 'Coffee House', 'Leostouch' and 'Leo's Boulangerie' and have therefore siphoned away the moneys earned from the business of the suit firm in breach of clause nos. 17, 21 and 22 of the partnership deed. It is submitted that since the respondent no.1 to 5 have used the income, assets and funds of the suit partnership in such other firms, as per clauses 17 and 21(a) of the partnership deed, the assets and income of the other businesses are liable to be accounted for and belong to the suit firm.
13. It is submitted by the learned senior counsel that without the consent and permission of the petitioner and the respondent no.6, respondent nos. 1 to 5 have opened a bank account with the Central Bank of India, Colaba Branch in the name of the suit firm and are operating the said account to the exclusion of the petitioner and the respondent no.6. It is submitted that the respondent nos. 1 to 5 are not rendering any account of actual cash sales of the restaurant business of the suit firm and are siphoning away moneys from the restaurant business of the suit firm.
14. Mr. Tulzapurkar, learned senior counsel then submits that the respondent nos. 1 and 2 have started the use of the trademarks 'Leostouch' and 'Leo's Boulangerie' which are identical and/or deceptively similar to the registered trademark 'Leopold' of the suit firm.
15. Learned senior counsel submits that since 1st April 2010 the respondent nos.1 to 5 have started paying a total sum of Rs.2 lacs to the petitioner and respondent no.6 and paid the said amount upto 30th November 2011. Though the respondent nos. 1 to 5 gave various assurances to comply with the terms of the partnership deed and to pay the arrears of salary to the petitioner and respondent no.6 respondent nos.1 to 5 failed to comply their promises and assurances. The petitioner and respondent no.6 therefore by their advocates' letter dated 21st July 2011 called upon the respondent nos.1 to 5 to comply with the promise and assurances given in the month of March 2009. There was further correspondence entered into between the parties. It is case of the petitioner that parties were negotiating for settlement upto 11th June 2013. The petitioner and the respondent no.6 by their advocates' letter dated 26th August 2013 called upon the respondent nos.1 to 5 to comply with the requisitions made in their letter dated 21st July 2011. The respondent nos.1 to 5 however made false allegations against the petitioner and respondent no.6 about the alleged harassment.
16. It is case of the petitioner that w.e.f 1st December, 2012 the respondent nos. 1 to 5 made various adhoc payment to the petitioner and the respondent no. 6 however suddenly since September 2013 stopped paying the said adhoc amount of Rs.2,50,000/- per month to the petitioner and Rs.2,00000/- to respondent no.6 and started paying a consolidated sum of amount of Rs.2 lacs per month totally to the petitioner and respondent no.6 from September 2013.
17. Learned senior Counsel invited my attention to a news article containing a statement alleged to have been made by the respondent no 2 that the suit firm planned to start and outlet in Goa or Mumbai. It was stated in the said news item that the Leopold restaurant is extremely popular with foreign tourists. It is submitted by the learned senior Counsel that that the first and 2nd respondent are freely selling the products of Leo Boulangerie from the premises of the suit firm. It is submitted that the respondent no 1 to 5 are diverting the partnership funds and business.
18. It is submitted by the learned senior Counsel that the respondents were conducting Café Royal from the year 1995 to 2004 which is just opposite Café Mondegar. It is submitted that it is clear that the respondent no 1 to 4 were doing competing business in the vicinity of the suit firm. It is submitted that the respondent no 6 was working at Café Mondegar for several years and was doing competing business in the same vicinity.
19. Learned Senior Counsel submits that though the net profit in the respondent cum bar business is more than 100%, the petitioner and the respondent would have got much more profit, they have veen paid a small amount. It is submitted by the learned senior Counsel that the first and the 2nd respondent are the partners of Cafe New York and are involved in the said business. Respondent no 3 is a Partner of the firm Café Universal and is always busy with the said business. It is submitted by the learned senior Counsel The first respondent is conducting the business of the Coffee House. It is submitted that the first and 2nd respondent are running a competitive business on the first floor of the building Rustom Manzil above the restaurant Leopold. The respondent no 2 is running a business in the name of Leos Boulangerie as a partner with his 20 year old daughter and 16 year daughter. The said business is looked after by respondent no 2 alone.
20. It is submitted by the learned senior Counsel that though the respondent nos. 1 to 4 have offered to purchase the 25% share of the petitioner and the respondent no 6, the petitioner and the respondent no 6 are not bound to transfer their respective share to the other partners. Learned senior Counsel placed reliance on section 9, 12, 14, 15, 16 and 19 of the Indian partnership Act 1932 and submits that all the partners are bound to carry on the business of the firm for the common advantage of all the partners and have to be just and faithful to all the partners. The petitioner and the respondent no 6 are entitled to participate in the conduct of the business and cannot be prevented by the respondents from such participation and to act as Partners. It is submitted that the respondent nos.1 to 5 cannot be permitted to use the property of the firm for any other business other than of the suit firm. The learned senior Counsel submits that the respondent nos. 1 to 5 are liable to account for the profits made by such competing firms and such profit shall form part of the profit of the suit firm.
21. Learned senior Counsel submits that since the respondent numbers 1 to 5 have siphoned of the funds of the suit firm, carrying on competing business and acting contrary to the interest of suit firm, depriving the petitioner and the respondent no 6 of participation and to get the access to the accounts of the suit firm and the real profits of the suit firm, petitioner is entitled to seek appointment of Court receiver of the assets and business of the suit firm even without dissolving the suit firm. The learned senior Counsel placed reliance on the passage from Halburys Laws of England in support of this submission. It is submitted that the petitioner is entitled to seek injunction against respondent no 1 to 5 from carrying on any competing business that of the suit firm.
22. Learned senior Counsel placed reliance on the judgment of Madras High Court in case of Karri Venkata Reddi vs Kollu Narasayya 32 Madras 76 in support of his submission that Court receiver can be appointed to carry on the partnership business. It is not necessary to seek the dissolution of the suit firm. Relevant paragraphs of the said judgment read thus:
â3. The history of the development of the English law on the point is so fully set forth in Lord Justice Landley's work on Partnership that it would be superfluous to recapitulate it here. The general rules that may be deduced from the authorities as well established may thus be stated.
4. In the first place the Court will not enforce the specific performance of an executory contract to carry on business in partnership. If the partnership was meant to be determinable at will, a decree to enforce the agreement would obviously be futile, and if the partnership was to be for a term of years it would not be for the benefit of persons who cannot agree that they should be compelled to do business together. The second rule is that the Court, generally speaking, will not undertake to carry on by its own officers a business which the partners to the contract cannot themselves carry on. The reasons for this rule are as apparent as those for the first rule. The third general rule is that the Court will not order a partial account to be taken of the partnership business if the rights of all the partners cannot properly be adjusted without taking a general account with a view to dissolution. Even to the first and second rule exceptions have been admitted. For instance, an agreement of partnership will be specifically enforced by ordering the execution of certain formal instruments, if otherwise the injured partner would be deprived of his legal right. So also the Court will appoint a receiver to carry on a partnership business with a view to the winding of its affairs. The third rule, as it applies now-a-days, leaves it to the Court to determine under what circumstances it would be equitable to order a partial account, having regard to the rights of the parties under the contractâSee Jagadisa Aiyar v. Kuppusami 15 M.L.J. 142, Subbarayndu v. Adinarayudu 18 M. 134, Durga Prosonno Bose v. Raghunath Dass 26 C. 254. It may be taken generally that if the account sought is in respect of a matter which though arising out of the partnership business or connected with it does not involve the taking of general accounts, the Court will, as a rule, give the relief asked for and will now-a-days refuse to interfere only in those cases in which a partial account would work injustice to the other partner.
5. It has never been a hard-and-fast rule that the Court will not interfere in a dispute between the partners, simply because the dispute relates to a matter connected with the partnership business, and, apart from any technical rules relating to the form of action, the ground for non-interference would seem to be co-extensive with the inability of the Court to give any effective relief or the inexpediency of giving the relief sought having regard to the essential characteristics of a contract of partnership and the justice of the case.
6. As regards the specific relief which the plaintiff seeks in this suit, the law on the point is thus laid down in Lord Justice Fry's book on Specific Performance on page 363 of the 4th Edition:
7. "The Court will not, generally speaking, enforce a contract to enter into a partnership whilst it remains executory, but, nevertheless, when the partnership has been constituted, the Court will, by injunction, enforce the performance of particular terms though it may be incompetent to enforce all the terms: this is the common course of practice in the Court." The only objection that can be urged to the practice is that it would involve the Court's interference on every occasion when one partner refuses to conform to a partnership article, but the answer to that is best given in the words of Sir John Leach, M.R., in Richards v. Davies (1831) 39 Eng. Rep. 427 at P. 428, when he was pressed with the same argument on behalf of a partner who refused to render account of a certain partnership transaction, because dissolution was not asked for:"What right has the defendant to complain of such new bill, if he repeats the injustice of withholding what is due to the plaintiff?" It need hardly be pointed out that to enforce a particular term of a partnership or to restrain its breach is not substantially open to the same objections as enforcing the performance of a contract to carry on a partnership business. We were at first inclined to think that there was a serious objection to the enforcement of a particular article in case of a partnership terminable at will as is the case here. But, after consideration, we think the following observations of Lord Justice Lindley are applicable to the present case. He says in his book at p. 570:"Where the partnership is determinable at will, there is, it is said, more difficulty in interfering if a dissolution is not sought; for, supposing the Court to interfere, the defendant may immediately dissolve the partnership. But supposing him to do so, an injunction will not necessarily be futile inasmuch as, so long as it continues in force, the defendant is rendered powerless for evil, and a notice by him to dissolve the partnership cannot per se operate as a dissolution of the injunction." In view of what has been said as to the plaintiff's right to specific performance, it becomes hardly necessary to say anything about the alternative prayer, because, as appears from the record, the cheque for Rs. 936 has not been cashed by the defendant.â
23. Learned senior Counsel placed reliance on the judgment of Allahabad High Court in case of Khaderan Ram and others vs Sharda Prasad AIR 1986 Allahabad 34 in support of his submission that since the respondent no.1 to 5 have completely excluded the petitioner no.1 and respondent no 6 from the management and profit of the suit firm the petitioner is entitled to apply for appointment of court receiver and injunction even without dissolution of the suit firm. Paragraphs 13 to 16 of the said judgment read this:
â13. It has been argued before me with reference to the case of Nihal Chand v. Ram Niwas, AIR 1968 Punj and Har 523 that a receiver may be appointed where a partner excludes another from the management of the partnership affairs. This case placed reliance upon the Madras case reported in, AIR 1955, Mad 430 (Supra) and on it was based a subsequent case of Rajasthan, viz., Abani Kumar Mukherjee v. Nand Kishore, AIR 1981 Raj 160. It was held that the only object and effect of appointment of a receiver is to maintain things in their present condition during pendency of the suit. The effect of appointment of a receiver of a running partnership is that it operates as an injunction against the other partners. Therefore, unless some special grounds for doing so can be shown, the court generally will not appoint a receiver against a partner. As a general rule, the court will not appoint a receiver unless dissolution of partnership firm is sought. The court does not in general interfere with the management of partnership except as incidental to the object of the action to wind up the assets. Special ground can be misconduct of a partner, which may be such as to show that he is no longer to be trusted as for example, he is carrying on trade of his own with partnership property or if there is any mismanagement which may endanger the whole concern, or if that partner is acting in a manner inconsistent with his duties and obligations or has excluded other partners from the fruits of the partnership funds, but non-co-operation of one partner in the management is not sufficient. Only if quarrels are such as to occasion a complete deadlock in carrying on the business, a receiver will be appointed. Another case, which is cited before me on behalf of the revisionists is that of Prem Prakash Kapoor v.Govind Ram Kapoor, AIR 1976 J and K 37. It was a suit for declaration, injunction and rendition of accounts of a partnership. It was established that the plaintiff had been excluded from the business of the firm and the Court was of the view that the firm assets were exposed to manifest peril. The defendants had taken over the stocks in trade and the business of the firm, and were dealing with the same as their own property after entering into a new partnership.
14. Somewhat same was the view of the Patna High Court in the case of Kamal Chaudhary v. Rajendra Chaudhary, AIR 1976 Pat 366 It was a partition suit. The property was joint and the plaintiff had been excluded from its enjoyment. It was held that it was unnecessary to prove that the plaintiff had a good prima facie case or to seek proof of waste of mismanagement and receiver could be appointed.
15. Again in Moti Lal v. Badrinath, (AIR 1982 J and K 1), which was a suit by one partner for dissolution of the partnership, the Court accepting the ground that the plaintiff has no access to the management and the accounts of the business, held the appointment of the receiver justified. In the case of G. Ram Chandrayya v. Nethi Iswarayya, AIR 1952 Hyd 139 the Court held that in suits relatingto partnership concerns, even though no circumstances tending to jeopardise the partnership assets be shown the Court would be justified in appointing a receiver if the defendant seeks to exclude the copartners from the management. The case of Sheonarain Jaiswal v. Shree Kripa Shanker Jaiswal, AIR 1972 Pat 75 was a suit for distribution and partition of the assets of a dissolved firm and it was found as a fact that the relations of the partners were strained. It was held that the Court could appoint a receiver as a matter of course in view of the bitter relationship between the partners.
16. The sum and substance of a perusal of this entire law on the subject is that if the partnership has been dissolved or is sought to be dissolved by the filing of the suit receiver can be appointed at a matter of course provided his appointment is sought for the taking of the assets of the firm and ultimately for distribution thereof to the partners and the relationship between the partners is extremely strained. In the cases in which one of the partners has completely excluded the other from the management and the profits of the firm and funds are misappropriated, receiver can again be appointed, but for a running firm, the dissolution of which is not established, the Court will be slow in appointing a receiver because that will affect the position of the person who is running the business and is in de facto possession of the same.â
24. Learned senior Counsel placed reliance on the judgment of the Allahabad High Court in case of Mumtaz Ali vs Kasim Ali Vol XL A.L.J.R 423 in support of his submission that the petitioner can apply for injunction against other partners from carrying on competing business, Relevant paragraphs of the said judgment read thus:
âThe real question in the case is whether an injunction could be granted in a case of this kind. Section 257 of the Contract Act provides that partners are bound to carry on the business of the partnership for the common object of the partnership and to be just and faithful to each other and by section 259 if a partner without the knowledge and consent of the other partners carries on any business competing or interfering with that of the firm, he must account to the firm for all the profits made in such business and must make compensation to the firm for any loss occasioned thereby. Therefore, the defendant, whose duty as the plaintiff's partner is to carry on the business of the partnership for the greatest common advantage of the partnership, may be liable to the plaintiff to account for the profits made by him in the competing firm or to make compensation to the plaintiff. Is that the plaintiff's only remedy or is he also entitled to restrain the defendant from carrying on the rival shop, which according to both the courts below could only be carried on to the detriment of the market in which the parties are partners. The learned counsel for the respondent has relied on a passage in the Tagore Law Lectures on Specific Relief by Dr. Banerji, page 773, which is to the following effect - âPartners, therefore, even in the absence of express covenants may be restrained from engaging in another concern of such a character as will necessarily give rise to a conflict of interestsâ. In support of this proposition the learned author refers to the case of Glassington Vs. Thwaites (I). In the case of Vice Chancellor LEACH observed :- âThe principles of courts of equity would not permit that parties, bound to each other by express or implied contract to promote an undertaking for the common benefit, should any of them engage in another concern, which necessarily gave them a direct interest adverse to that undertakingâ. It is thus clear that one partner can restrain another from carrying on business in rivalry with the partnership when that business could only be carried on to the detriment of the original business. It is true that under section 56 of the Specific Relief Act, clause (a) an injunction should not be granted when equally efficacious relief can be obtained by any other usual mode of proceeding and it is contended by the learned Counsel for the appellant that as the plaintiff may recover profits or compensation under section 259 of the Contract Act an injunction should not be granted. Section 54, clause (e) however, provides for the issue of a perpetual injunction, where such injunction is necessary to prevent a multiplicity of judicial proceedings, although the plaintiff may claim profits or compensation, that would lead to multiplicity of proceedings. If the defendant's rival market be continued, the plaintiff would have to bring an action every year for the profits of that year. The case of Whit-wood Chemical Company Vs. Hardman, (1891) L.R. Ch.416 cited by the learned Counsel for the appellant has in my opinion no bearing on this case. There the defendant was a manager, who entered into a covenant to render service to the plaintiff's firm which is not the case here. The present case is that of one of two partners carrying on a rival business in competition with and to the prejudice of the partnership. In such a case it seems to me that the plaintiff is entitled to an injunction restraining the defendant from carrying on the rival business and therefore, the decree of the court below is correct. I dismiss the appeal with costs.â
25. Learned senior Counsel placed reliance on the menu card of the restaurant of the suit firm and other firm in support of his submission that the other firms run by the respondents no 1 to 5 are selling the same items which are sold by the suit firm in its restaurant Leopold and are competing with the business of the suit firm.
26. Mr Madon, learned senior Counsel for respondent nos. 1 to 5 on the other hand submits that the petitioner cannot seek any interim measures in this proceeding in view of the fact that though the dispute arose between the parties admittedly in the year 2008, the petitioner has not taken any steps to appoint an arbitrator for more than 5 years. Learned senior Counsel invited my attention to the correspondence exchanged between the parties since 2008 till 2013. It is submitted that though in the April 2008 the parties had exchanged the name of the arbitrator, petitioner did not file any application for appointment of arbitrator till today. It is submitted that even after the respondents filed affidavit in reply raising this issue, the petitioner did not take any steps to seek appointment of an arbitrator. Learned senior Counsel placed reliance on the judgment of Supreme Court in case of M/s Sundaram finance Ltd versus/S NEPC India limited AIR 1999 SC 565 Paragraphs 19 and 20 and also the judgment of Supreme Court in case of Firm Ashok Traders and another versus Gurumukh Das Saluja and others (2004)3 S.C.C 155 paragraphs 17 and 18 in support of this submission. Paragraphs 19 and 20 of the judgment in case of Sundaram Finance (supra) read thus:
â19. It was submitted by Mr. Subramaniam that even if the Court can exercise jurisdiction under Section 9 before the arbitral proceedings have commenced the party seeking to invoke Section 9 must express a manifest intention to arbitrate. The learned counsel submitted that this intention can take the following forms : (a) In an application under Section 9, the party would have to state that it unequivocally relies on the arbitration agreement and makes an averment that it would invoke the arbitration Clause; (b) At the time when the Court passes an interim order under Section 9, an express undertaking is given by the party before the Court that it would invoke the arbitration clause forthwith and within a fixed period; and (c) a notice invoking arbitration clause should have been issued to the opposite party. It was contended that mere filing of an application under Section 9 was not sufficient to establish manifest intention to this extent.
20. When a party applies under Section 9 of the 1996 Act it is implicit that it accepts that there is a final and binding arbitration agreement in existence. It is also implicit that a dispute must have arisen which is referable to the arbitral tribunal. Section 9 further contemplates arbitration proceedings taking place between the parties. Mr. Subramaniam is, therefore, right in submitting that when an application under Section 9 is filed before the commencement of the arbitral proceedings there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings if, at the time when the application under Section 9 is filed, the proceedings have not commenced under Section 21 of the 1996 Act. In order to give full effect to the words "before or during arbitral proceedings" occurring in Section 9 it would not be necessary that a notice invoking the arbitration clause must be issued to the opposite party before an application under Section 9 can be filed. The issuance of a notice may, in a given case, be sufficient to establish the manifest intention to have the dispute referred to arbitral tribunal, but a situation may so demand that a party may choose to apply under Section 9 for an interim measure even before issuing a notice contemplated by Section 21 of the said Act. If an application is so made the Court will first have to be satisfied that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is so satisfied the Court will have the jurisdiction to pass orders under Section 9 giving such interim protection as the facts and circumstances warrant. While passing such an order and in order to ensure that effective steps are taken to commence the arbitral proceedings, the Court while exercising jurisdiction under Section 9 can pass conditional order to put the applicant to such terms as it may deem fit with a view to see that effective steps are taken by the applicant for commencing the arbitral proceedings. What is apparent, however, is that the Court is not debarred from dealing with an application under Section 9 merely because no notice has been issued under Section 21 of the 1996 Act.â
Paragraphs 17 and 18 of the judgment in case of M/s Firm Ashok Traders (supra) read thus:
â17. There are two other factors which are weighing heavily with us and which we proceed to record. As per the law laid 'down by this Court in M/s. Sundaram Finance Ltd. an application under Section 9 seeking interim relief is maintainable even before commencement of arbitral proceedings. What does that mean? In M/s. Sundaram Finance Ltd., itself the Court has said -- "It is true that when an application under Section 9 is filed before the commencement of the arbitral proceedings there has to be manifest intention on the part of the applicant to take recourse to the arbitral proceedings". Section 9 permits application being filed in the Court before the commencement of the arbitral proceedings but the provision does not give any indication of how much before. The word 'before' means, inter alia, "ahead of; in presence or sight of; under the consideration or cognizance of. The two events sought to be interconnected by use of the term 'before' must have proximity of relationship by reference to occurrence; the later event proximately following the preceding event as a foreseeable or 'within sight' certainty. The party invoking Section 9 may not have actually commenced the arbitral proceedings but must be able to satisfy the Court that the arbitral proceedings are actually contemplated or manifestly intended (as M/s Sundaram Finance Ltd. puts it) and are positively going to commence within a reasonable time. What is a reasonable time will depend on the facts and circumstances of each case and the nature of Interim relief sought for would itself give an indication thereof. The distance of time must not be such as would destroy the proximity of relationship of the two events between which it exists and elapses. The purpose of enacting Section 9, read in the light of the Model Law and UNCITRAL Rules is to provide 'interim measures of protection'. The order passed by the Court should fall within the meaning of the expression 'an interim measure of protection' as distinguished from an all-time or permanent protection.
18. Under the AandC Act 1996, unlike the predecessor Act of 1940, the arbitral tribunal is empowered by Section 17 of the Act to make orders amounting to interim measures. The need for Section 9, in spite of Section 17 having been enacted, is that Section 17 would operate only during the existence of the arbitral tribunal and its being functional. During that period, the power conferred on the arbitral tribunal under Section 17 and the power conferred by the Court under Section 9 may overlap to some extent but so far as the period pre and post the arbitral proceedings is concerned the party requiring an interim measure of protection shall have to approach only the Court. The party having succeeded in securing an interim measure of protection before arbitral proceedings cannot afford to sit and sleep over the relief, conveniently forgetting the 'proximately contemplated or 'manifestly Intended' arbitral proceedings itself. If arbitral proceedings are not commenced within a reasonable time of an order under Section 9, the relationship between the order under Section 9 and the arbitral proceedings would stand snapped and the relief allowed to the party shall cease to be an order made 'before', i.e. in contemplation of arbitral proceedings. The Court, approached by a party with an application under Section 9, is justified in asking the party and being told how and when the party approaching the Court proposes to commence the arbitral proceedings. Rather, the scheme in which Section 9 is placed obligates the Court to do so. The Court may also while passing an order under Section 9 put the party on terms and may recall the order if the party commits breach of the terms.â
27. It is submitted by the learned senior Counsel that the registration certificate of the suit firm does not show name of the respondent no. 6 as a Partner and therefore the respondent no.6 could not have filed a petition in his own name. It is submitted that section 69 of the Indian partnership Act prohibits filing of proceeding by such a Partner. This petition has been filed by the respondent no 6 . It is submitted that even the verification clause is signed by respondent no.6. It is submitted by the learned senior Counsel that what cannot be done directly cannot be done indirectly. In support of the this submission the learned senior Counsel placed reliance on the judgment of Supreme Court in case of State of Tamilnadu versus Shyam Sundar and others AIR 2011 SC 3470. It is submitted by the learned senior Counsel that the 6th respondent who is son of the landlady of the suit firm has given a notice of eviction to the suit firm and is carrying on the competing business along with his mother who is Partner of the firm Café Mondegar. It is submitted that the 6th respondent is not acting diligently in the interest of the suit firm and thus cannot be allowed to participate in the business of the suit firm. It is submitted that the petitioner, Respondent Nos. 5 and 6 were sleeping partners .
28. Mr Madon, learned senior Counsel submits that Petitioner and Respondent No. 6 were aware of the supplementary deed dated 19th January 2006 and about the salary being paid to the working Partners pursuant to the said deed. The petitioner and the 6th respondent also have been paid salaries at the enhanced rates. Though the petitioner and the 6th respondent had raised this issue in the year 2008, no steps were taken by the petitioner or by the 6th respondent. The petitioner and the 6th respondent are thus estopped from raising this issue now. It is submitted that the profits as due to all the partners under the partnership deed have been credited to the capital account of each of the partners of the suit firm.
29. It is submitted by the learned senior Counsel that the Café New York, Café Universal, Coffee House, Leos Touch Leos Boulangerie are not the assets of the suit firm. None of those businesses are run by the suit firm or by any of the partners of the suit firms. It is submitted that respondent no 1 and 2 have inherited share of their father in the firm Café New York 20 years back and except profit in the said firm do not receive any other remuneration. There are other 5 partners. Respondent no.1 and 2 are not involved in day to day management of the said firm. In so far as the firm Café Universal is concerned the respondent no 3 is admitted as a Partner to the said firm about 12 years ago by investing his own funds. The other partner of the said firm is Mr Behram S. Irani.
30. In so far as the restaurant Coffee House is concerned, learned senior counsel submits that the said restaurant is 2 km away from the restaurant run by the said firm and none of the respondents in any manner connected with the business of the said Coffee House. In so far as the business of Leos touch is concerned, it is submitted that the said company is incorporated by respondent no.1, 2 and Mrs. Shahnaz F. Jehani and there is no business conducted by the said company. The said company has been incorporated by the respondent no. 1 and 2 with their personal funds. In so far as the partnership firm Leos Boulangerie is concerned, the said firm is a partnership firm consisting of respondent no. 2 and his two daughters. The said firm is carrying on business of cakes and deserts and is about two km away from the Leopold respondent. The said firm does not conduct any business which competes with the business of the firm. It is submitted that the said firm has been incorporated with the personal funds of the respondent no.2.
31. In so far as issue of inspection of documents is concerned, learned senior counsel submits that though right to inspection is a continuing right of each and every partner, petitioner or respondent no. 6 cannot dispute that the respondent no. 1 to 5 had offered inspection of the partnership books, business records, vouchers and bills and are ready and willing to offer such inspection. The petitioner and the respondent no.6 have been filing their income tax returns based on such accounts of the said firm and cannot dispute that they were neither given inspection nor furnished copies thereof. Even in the letters addressed in the year 2008, petitioner as well as respondent no. 6 has referred to some accounts. Learned senior counsel submits that in the month of June, 2013, suit firm had received a letter from the Income Tax Officer confirming about the application received from respondent no. 6 seeking copies of the income tax returns, audited balance sheet, profit and loss account and etc. of the suit firm and for giving a no objection certificate for providing such information to respondent no. 6. In response to the said letter, Respondent nos.1, 2 3 and 5 provided their no objection to the income tax authorities for providing such inspection. It is submitted that the petitioner did not give any such similar no objection to the income tax authorities for furnishing inspection and/or information to the respondent no.6.
32. By their advocates letter dated 24th June, 2014, the respondent no. 1 to 5 informed the advocate of the petitioner and respondent no. 6 which is on record that they were always ready and willing to provide copies of the audited accounts of the suit firm to the petitioner and respondent no. 6. Along with the said letter, respondent no.1 to 5 through their advocate forwarded audited accounts of the suit firm for the assessment years 2009-2010 to 2013-2014. In so far as allegations of the siphoning of the funds or income of the suit firm is concerned, it is submitted by the learned senior counsel that in the financial year 1996-97 the turnover of the business of the suit firm was Rs.1,45,66,117/-, in the financial year 2002-2003 it was Rs.1,85,90,527/- and in comparison thereto the turn over for the financial year 2012-2013 has increased to Rs. 12,85,46,668.10 which shows the increase of turn over by approximately 1200%. It is thus submitted that if there would have been any siphoning of any funds or income, the suit firm would not have carried out such huge turn over.
33. In so far as opening of the bank account is concerned, learned senior counsel submits that the suit firm had an existing bank account with Bank of India prior to 10th Sept. 1996 when the respondent no. 6 was admitted as a partner in the suit firm and letter with the central Bank of India since 1st Jan. 1998. The petitioner has never raised any objection for last several years for such accounts. In so far as allegations of the petitioner that there are cash sales in the restaurant business which are not reflected in the books of accounts is concerned, learned senior counsel submits that the respondent nos. 1 to 5 are maintaining the proper accounts and each and every transaction is reflected in the accounts. It is submitted that average net profit of the suit firm for the last five years is approximately 20%. Most of the customers make payment by credit card and not in cash. The question of siphoning of any profit and/or any fund did not arise.
34. Learned senior counsel placed reliance on the judgment of Supreme Court in case of Sukanya Holdings Pvt. Ltd. Vs. Jayesh H. Pandya and another AIR 2003 SC 2252 and in particular paragraph 13 to 17 in support of the submission that the petitioner cannot seek any interim measures against various firms such as appointment of court receiver, injunction, etc. who are not parties to the petition or to the arbitration agreement. Paragraph 13 to 17 of the said judgment read thus :
â13. Secondly, there is no provision in the Act that when the subject matter of the suit includes subject matter of the arbitration agreement as well as other disputes, the matter is required to be referred to arbitration. There is also no provision for splitting the cause or parties and referring the subject matter of the suit to the arbitrators.
14. Thirdly, there is no provision - as to what is required to be done in a case where some parties to the suit are not parties to the arbitration agreement. As against this, under Section 24 of the Arbitration Act, 1940, some of the parties to a suit could apply that the matters in difference between them be referred to arbitration and the Court may refer the same to arbitration provided that the same can be separated from the rest of the subject matter of the suit. Section also provided that the suit would continue so far as it related to parties who have not joined in such application.
15. The relevant language used in Section 8 is--"in a matter which is the subject matter of an arbitration agreement". Court is required to refer the parties to arbitration. Therefore, the suit should be in respect of 'a matter' which the parties have agreed to refer and which comes within the ambit of arbitration agreement. Where, however, a suit is commenced - "as to a matter" which lies outside the arbitration agreement and is also between some of the parties who are not parties to the arbitration agreement, there is no question of application of Section 8. The word 'a matter' indicates entire subject matter of the suit should be subject to arbitration agreement.
16. The next question which requires consideration is--even if there is no provision for partly referring the dispute to arbitration, whether such a course is possible under Section 8 of the Act? In our view, it would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matter of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language, it follows that bifurcation of the subject matter of an action brought before a judicial authority is not allowed.
17. Secondly, such bifurcation of suit in two parts, one to be decided by the arbitral tribunal and other to be decided by the civil court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parties and on occasions there is possibility of conflicting judgments and orders by two different forums.â
35. The learned senior also placed reliance on judgment of Guwahati High court in support of above submission decided in Arb. Appeal No. 2 of 2013 in case of M/s. Brahmaputra Realtors Pvt. Ltd. Versus M/s. G.G. Transport (Pvt) Ltd. delivered on 25th July, 2014 in particular para 64 which reads thus :
â64. Section 9 of the Act is attracted only if the nature of dispute is subject matter of Arbitration proceedings or agreement. It does not contemplate any such relief which does not stem from the Arbitration Proceedings or the disputes referred to in arbitration for adjudication. The Kerala High Court in the case of Shoney Sanil V. M/s.Coastal Foundations (P) Ltd. and others (AIR 2006 KERALA 206) was pleased to lay down as under: âThe interim measures which are conceived by the Legislature while enacting S.9 are those interim measures which relate to the arbitration agreement between the parties and being interim, they are to confine to the matters relating to the arbitration agreement between the parties. This intention is explicit from the opening words of S.9, which provides for the party to apply for interim measure. On a plain reading of S.9 and going by the scheme of the said Act, there is no room to hold that by an interim measures under S.9, the rights of third party, holding possession on the basis of a Court sale could be interfered with, injuncted or subjected to proceedings under S.9. Section 9 contemplates issuance of interim measures by the Court only at the instance of a party to an arbitration agreement with regard to the subject matter of the arbitration agreement. This can be only as against the party to an arbitration agreement, or, at best, against any person claiming under him. The petitioner is a third party auction purchaser in whose favour is a sale certificate, followed by delivery of possession. He cannot therefore, be subjected to proceedings under S.9, initiated on the basis of an alleged arbitral agreement between the respondents.â
36. Learned senior counsel tendered âBusiness comparison chartâ showing the area of operation, nature of business, date of commencement of business and names of the partners of the other five firms which are referred by the petitioner on the allegations of competing business.
37. It is submitted by the learned senior counsel that the term Leo is a generic term of Lion. The emblem of Leo's Boulangerie is totally different. It is submitted that if there is any passing of, action can be taken as passing of action. It is submitted that Section 16 of the Partnership Act 1932 is not attracted to the facts of this case. Neither the respondents are using the name of the suit firm nor property or business connection of the suit firm. Even the business of the other firms are not identical and/or similar to the business of the suit firm. Reliance is placed on Section 56, 53 and 54 of the Indian Partnership Act and it is submitted that whether respondent Nos.1 to 5 have carried out competing business or not can be proved only by oral evidence and at the time of final arguments. Mr Madon learned senior counsel invited my attention to the averments made in the petition regarding alleged passing of action.
38. In so far as newspaper cutting relied upon by the petitioner is concerned, my attention is invited to letter dated 31/12/2013 addressed by respondent Nos.1 to 5 to the publisher of the said newspaper objecting to the contents of the alleged statements published in the newspaper on the same day. It is submitted that respondent Nos.1 to 5 neither made any such statement nor carried on any such business as alleged in the said newspaper article.
39. Mr Madon learned senior counsel distinguished the judgment of Calcutta High Court in case of Mumtaz Ali (supra) on the ground that at the stage of trial of the suit after considering the oral evidence, the Calcutta High Court has come to the conclusion that there was competing business carried out by some of the partners. It is submitted that the said judgment thus would not apply to the facts of this case.
40. Mr Madon learned senior counsel then submits that the petitioner as well as respondent No.6 have accepted salary at enhanced rates and did not raise any objection. Since the petitioner and respondent No.6 had refused to sign supplementary deed, petitioner and respondent No.6 was initially refused the increased salary. It is however not in dispute that both of them are getting the increased salary for quite some time.
41. In so far as the passages from the treaties of Hudson relied upon by Mr. Tulzapurkar learned senior counsel is concerned, it is submitted by the learned senior counsel that there is no dispute about the proposition that receiver can be appointed of a dissolved firm for the purpose of winding up and the receiver cannot be appointed of a running firm as a matter of course. The petitioner has to make out the strongest case for appointment of a receiver of the running firm which the petitioner has failed to make out.
42. Mr Madon learned senior counsel once again made an offer for purchase of 25% share of the petitioner and respondent No.6 at the valuation of their share as may be made by a valuer who may be appointed by this Court. Mr Tulzapurkar however declined to accept any such proposal made by Mr Madon learned senior counsel
43. In rejoinder, Mr. Tulzapurkar, learned senior counsel submits that under the provisions of Indian Partnership Act 1932 and also under the partnership deed, various rights are given to the partners. The petitioner seeks enforcement of such rights under the Act and also the partnership deed. Respondent Nos.1 to 5 cannot stop the petitioner and respondent No.6 from enforcing their rights provided under the Partnership Act and the partnership deed. It is submitted that though respondent Nos.1 to 5 have offered to give inspection in piece-meal of various documents, they bluntly refused to furnish photocopies. Since the basic accounts on the basis of which the balance sheets and other final statements are prepared are not furnished to the petitioner and respondent No.6, the petitioner was not able to take any steps to seek appointment of an arbitrator. It is submitted by the learned senior counsel that under Section 12(d) of the Indian Partnership Act 1932, every partner has a right to access, to inspect and copy any of the books of the firm.
44. It is submitted by the learned senior counsel that the arbitration petition has not been filed by respondent No.6 as canvassed by Mr Madon but is filed by the petitioner firm through its Constituted Attorney who is respondent No.6 since the petitioner was not in town at the relevant stage. It is submitted that merely because mother of respondent No.6 who in her own rights was entitled to file a suit for eviction and such suit is filed by respondent No.6 as a Constituted Attorney of his mother for eviction of the suit firm, that cannot be a ground for restraining the respondent No.6 from participating in the business of the suit firm.
45. In so far as submission of use of trademark is concerned, it is submitted that the âLeopoldâ is a registered trademark and is an asset of a suit property. The respondents are not entitled to use the partnership assets including trademark of the suit firm for their personal use. The term 'Leo' forms an essential part of trademark 'Leopold'. It is submitted that the action of the petitioner is not a passing of action. Since respondent Nos.1 to 5 are misusing the assets including the trademark for their personal benefit, petitioner is entitled to seek injunction against respondent Nos.1 to 5 from misuse of the assets of the suit firm for their personal use and gains.
46. In so far as alleged delay in taking steps to appoint an arbitrator is concerned, reliance is placed on the averments made in paragraph 9 of the petition and it is submitted that the settlement talks were going on between the parties till June 2013. The cause of action being a continuous cause of action, hence there cannot be any delay on the part of the petitioner in taking steps to get the arbitrator appointed. It is submitted that the judgment of Supreme Court in case of Firm Ashok Traders and Anr (supra) relied upon by Mr Madon therefore does assist respondent Nos.1 to 5.
47. It is not in dispute that under the partnership deed entered into between the parties, Petitioner was not a working partner of the suit firm. Respondent No. 6 on attaining the age of majority however, could act as working partner. The present petition is filed by the Petitioner whose name was recorded in the certificate of registration of the suit firm. The name of Respondent No. 6 is not registered as a partner of the suit firm, Respondent No. 6 could not have filed this petition under section 9 of the Arbitration and Conciliation Act, 1996.
48. In so far as submission of Mr. Tulzapurkar, learned senior counsel that Respondent No. 1 to 5 had refused to grant inspection of the books of accounts of the suit firm to the Petitioner and Respondent No. 6 and had merely handed over copy of the balance sheet for the period 2002-2007 is concerned, it is not in dispute that the Petitioner has filed his personal income tax returns based on the accounts of the suit firm. Even in the correspondence exchanged between the parties in the year 2008, Petitioner himself has referred to some of these accounts. There is no dispute about the proposition of law that a partner is entitled to access to usual books of accounts and make copies there-from. Respondent No.1 to 5 also do not dispute this proposition and have offered inspection of the books of accounts and have as a matter of record furnished the relevant documents from time to time. The correspondence on record clearly indicates that Respondent Nos.1 to 5 had not only offered inspection but had furnished copies of the relevant documents. Respondent No.6 had applied for copies of the books of accounts and relevant documents under the provisions of Right to Information Act by making an application before the Income Tax Officer. In response to the one of the letter addressed by the Income Tax Officer to the suit firm, the suit firm has given their no objection for furnishing the relevant copies of the documents or record of the Income Tax Department of the suit firm to Respondent No.6. The Petitioner however, did not give any such no objection for furnishing such copies of the documents to the Respondent No. 6 by the Income Tax Officer. The perusal of the record also indicates that Respondent Nos.1 to 5 have forwarded audited accounts of the suit firm for the assessment year 2009-2010 to 2013-2014 to the Petitioner and Respondent No.6. In my view thus there is no merit in this submission of Mr. Tulzapurkar learned senior counsel for the Petitioner.
49. The next question that arises is whether the present petition is filed by the Petitioner or by Respondent No. 6. A perusal of the petition indicates that the petition is verified by Respondent No. 6 as a constituted attorney of the Petitioner. I am inclined to accept the submission of Mr. Tulzapurkar that the petition is filed by the Petitioner and not by the Respondent No. 6 as a proxy on behalf of the Petitioner but has filed as a constituted attorney based on the power of attorney executed in favour of Respondent No. 6 by the Petitioner due to his inability to file the petition at the stage of filing the petition. Merely because the petition is affirmed and verified by Respondent No. 6 as a constituted attorney of the Petitioner, it cannot be construed as if the petition is filed by Respondent No. 6. I am not inclined to accept the submission of Mr. Madon, learned senior counsel that the petition is filed by Respondent No. 6 or since the Respondent No. 6 is not a registered partner, this arbitration petition filed by the petitioner is not maintainable in view of bar under section 69(3) of the Indian Partnership Act 1932.
50. In so far as submission of Mr. Tulzapurkar, learned senior counsel that Respondent Nos. 1 to 5 have fabricated the supplementary deed dated 19th January, 2006 and thereby unilaterally increased the salary/remuneration payable to Respondent 1 to 5 is concerned, it is the case of Respondent Nos. 1 to 5 that since the Petitioner and Respondent No.6 though agreed to accept the increased salary did not sign the supplementary bill, the Respondent Nos. 1 to 5 executed the said supplementary deed. A perusal of the petition would indicate that the Petitioner as well as Respondent No. 6 also have been paid at the increased rate though may not be equivalent to the amount drawn by Respondent Nos.1 to 5. Be that as it may, the exact entitlement of the Petitioner for salary/renumeration as a partner can be considered by the learned arbitrator. Though the supplementary bill was executed on 19th January, 2006, the Petitioner did not take any steps or did not raise any objection in this regard for last several years.
51. In so far as submission of Mr. Tulzapurkar, learned senior counsel that the Respondent Nos. 1 to 5 have opened a bank account with Central Bank of India, Colaba Branch to the exclusion of the Petitioner and Respondent No. 6 is concerned, it is the case of Respondent Nos. to 1 to 5 that the said account is in operation since January, 1998. The Petitioner has never raised any objection in respect of the said account for last several years. The Respondent Nos. 1 to 5 has been maintaining the accounts in the name of the suit firm. The learned arbitrator can look into the transactions carried out by the other partners on behalf of the suit firm in the said account.
52. In so far as issue raised by the Respondent Nos 1 to 5 that though Respondent Nos. 1 to 5 have offered to purchase 25% share of the Petitioner and Respondent No. 6 but they are entitled to refuse to transfer their share is concerned, in my view, Mr. Tulzapurkar, learned senior counsel is right in his submission that the Petitioner and/or Respondent No. 6 are not bound to transfer their respective shares to the other partners if they wish to continue as partners of the suit firm.
53. The next submission of Mr. Tulzapurkar, learned senior counsel is that the Respondent Nos. 1 to 5 have been carrying on a competing business that of the suit firm and have been running the other restaurants viz. Cafe New York, Café Universal, Coffee House, LeoTouch, and Leo's Boulangerie by siphoning away the moneys earned from the business of the suit firm and using the income, assets of the suit firm is concerned, Respondent Nos. 1 to 5 in their affidavit in reply have denied these allegations in to. Respondent Nos.1 to 5 have furnished details of the partners of the aforesaid firms and submitted that no part of assets, funds or income of the suit firm is used for any of such businesses which are carried out independently by few partners of the suit firm along with outsiders independently for last several decades. It is the case of Respondent Nos.1 to 5 that even the nature of the business carried on by these firms are different. In my view merely because the menu card of the restaurant Leopold and menu card of one of the above firms is common in respect of some of the items, it cannot be construed at this stage that the other partners are carrying on any competing business with that of the suit firm. A perusal of the record prima facie indicates that in some of these firms even partners are different and such firms are in operation for quite some time. The Petitioner has not raised any objection and or made any allegations of competing business prior to 2008.
54. Be that as it may, in my view since Petitioner has prayed for appointment of Court Receiver also in respect of the businesses and assets of these firms, none of these firms being party to this petition and party to arbitration agreement with the Petitioner, no relief of appointment of court receiver or injunction can be granted against those third parties in this proceedings. None of those firms are claiming through the Respondent Nos. 1 to 5. In my view, Mr. Madon, learned senior counsel is right in placing reliance on the judgment of the Supreme Court in case of Sukanya Holdings Pvt. Ltd. Vs. Jayesh Pandya (supra) on this issue and also judgment of Guwahati High Court in case of M/s. Bramhaputra Realtors Pvt. Ltd. (supra).
55. In my view, even otherwise it is not possible to come to any conclusion at this stage as to whether Respondent Nos. 1 to 5 have been using the assets, funds and or income of the suit firm, and are carrying on any competing business with that of the suit firm. This issue can be decided only at the time of final adjudication of these allegations before the learned arbitrator. At this stage, I am of the prima facie view that Petitioner has not made out any case for appointment of Court Receiver for injunction against Respondent Nos.1 to 5 from allegedly carrying on any of such business in the name of aforesaid firms.
56. The next submission of Mr. Tulzapurkar, learned senior counsel is that the Respondent Nos.1 to 5 have not reflected all the sales effected in the restaurant run by the suit firm in the books of accounts and the funds are siphoned away by the other partners. It is the case of Respondent Nos.1 to 5 that cash bills are issued in respect of each customer and most of the payments received by the suit firm are by credit cards. It is the case of the Respondent Nos.1 to 5 that each of such transaction is recorded in the books of accounts and is duly reflected.
57. Respondent Nos.1 to 5 have also placed on record the details of the turn over of the suit firm for last several years. The turn over of the suit firm in the financial year 1996-97 was at Rs.1,45,66,117/-, at Rs.1,85,90,527/- in the financial year 2002-2003 which has increased to Rs.12,85,46,668.10/- in the financial year 2012-13 which shows the increase of turn over by approximately 1200%. Petitioner does not dispute the increase in the turn over of the business of the suit firm to this extent. In any event if according to the Petitioner, the entire turn over is not reflected in the books of accounts, the said issue can be gone into by the learned arbitrator in the arbitration proceedings. At this stage I am not inclined to accept the allegations of the Petitioner that Respondent Nos. 1 to 5 have siphoned of any funds or income.
58. In so far as the submission of Mr. Tulzapurkar, learned senior counsel that the respondent nos. 1 to 5 are using the trademark of the suit firm that is âLeopoldâ for running the firm of Leo Touch and Leos Boulangerie is concerned, a perusal of the certificate relied upon by Mr. Tulzapurkar, learned senior counsel indicates that the registered trade mark is âLeopoldâ. In my view Mr. Madon, learned senior counsel is right in his submission that the term âLeoâ is a general term of lion. In my prima faciie view the emblem of Leos Boulangurie is different than the emblem used for restaurant âLeopoldâ. Be that as it may, the remedy of the petitioner would be for passing of action and not in this proceedings under section 9 of the Arbitration and Conciliation Act, 1996.
59. In so far as newspaper article relied upon by Mr. Tulzapurkar learned senior counsel on the issue of alleged competing business is concerned, a perusal of the letter dated 31st December, 2013 addressed by respondent nos.1 to 5 to the publisher of newspaper clearly indicates that the respondent nos. 1 to 5 have promptly raised objection to the contents of the alleged statement published in the newspaper. It is not in dispute that the respondent nos. 1 to 5 have not carried on any such new business as alleged in the said newspaper.
60. Perusal of the record prima facie indicates that the petitioner through his advocates letter dated 31st March, 2008, addressed to the respondent nos.1 to 5 had made various allegations such as siphoning of funds, increase of salary unilaterally, inspection of accounts and records not furnished, alleged mismanagement in the affairs of the Partnership business, criminal breach of trust etc. In the said notice the petitioner has threatened the respondent nos.1 to 5 of appropriate legal action if the requisitions made in the said notice were not complied with. The petitioner had also issued a notice on 30th January, 2008 through his advocate making similar allegations and calling upon the respondent nos. 1 to 5 to amicably settle the matter within ten days from the date of receipt of the said notice making it clear that the petitioner would have no option but to appoint arbitrator as per terms of the partnership deed to settle the disputes and/or would adopt necessary legal proceedings. The respondent nos.1 to 5 have denied all these allegations by addressing letter in the month of February, 2008, April, 2008 and subsequently. Though the learned senior counsel appearing for the petitioner urged before this court that the parties were negotiating for settlement till June, 2013, the learned senior counsel could not produce any document on record in support of this submission. Though the respondent nos.1 to 5 in affidavit in reply has raised an objection about the maintainability of this petition, on the ground of the petitioner not taking any steps to appoint an arbitrator, petitioner has not taken any steps to appoint an arbitrator till today and has not filed any application for appointment of arbitrator under section 11 of the Arbitration and Conciliation Act, 1996.
61. Supreme Court in case of Sunderam Finance Limited (supra) has held that when an application under section 9 is filed before the commencement of the arbitral proceedings, there has to be manifest intension on the part of the applicant to take recourse to the arbitral proceedings. In case of M/s. Firm Ashok Traders (supra) Supreme Court has held that party invoking section 9 may not have actually commenced the arbitral proceedings but must be able to satisfy the court that the arbitral proceedings are actually contemplated or manifestly intended and/or positively going to commence within a reasonable time. It is held by the Supreme Court that the party having succeeded in securing an interim measure of protection before arbitral proceedings cannot afford to seek and sleep over the relief, conveniently forgetting the proximately contemplated or manifestly intended arbitral proceedings itself. In my view a party who has no intension to ultimately refer the dispute to arbitration and seek final relief cannot be permitted to seek interim relief. Interim relief is in aid of final relief. The petitioner in this case has not taken any steps to appoint an arbitrator though notice invoking arbitration agreement was given as far back as on 30th January, 2008. In my view, the petitioner is not entitled to seek any interim measures on this ground alone.
62. In so far as submission of Mr. Tulzapurkar, learned senior counsel that in view of section 9, 12, 14 to 16 and 19 of Indian Partnership Act, 1932, every partner is entitled to have access to accounts, participate and carry out the business of the firm, respondent nos. 1 to 5 cannot prevent the petitioner or respondent no. 6 from participating in the conduct of the business is concerned, there is no dispute about the proposition that under the above referred provisions, the partners are entitled to carry on business and participate in the business and are entitled to have access to the books and accounts and copies thereof. The petitioner is admittedly not a working partner. In my view the petitioner not having taken any steps to apply for appointment of arbitrator for last several years is not entitled to seek any such relief.
63. In so far as submission of Mr. Tulzapurkar, learned senior counsel that though the suit firm is not dissolved, petitioner cannot be refused reliefs of appointment of court receiver of a running business is concerned, Mr. Madon learned senior counsel for respondent nos. 1 to 5 does not dispute this proposition that court receiver can be appointed of a running partnership business, however, it is submitted that for seeking such relief, the partner has to make out the strongest case for appointment of receiver of a running business which the petitioner has failed in this case. In my view receiver of a running business in case of a firm not dissolved can be appointed only if the petitioner makes out the strongest case.
64. In my view the respondent nos.1 to 5 are carrying on business and have increased the turn over to the extent of 1200% in the last ten years. The suit firm has achieved goodwill and has been carrying on business smoothly. The petitioner has not been able to demonstrate even prima facie any instances of siphoning of the income, funds etc. of the suit firm, competing business etc. The petitioner has been paid the renumeration from time to time. If according to the petitioner the other partners the suit firm has not paid the entire amount due, same can be subject matter of arbitration on appropriate proceedings. The judgment of Madras High Court in case of Karri Venkata Reddy (supra) and judgment of Allahabad High Court in case of Khade Ram and Ors. (supra), in my view are clearly distinguishable with the facts of this case. The petitioner is already being paid salary at enhanced rates and also the profits of the suit firm. In my view even otherwise no case is made out for appointment of court receiver or injunction as prayed for. In my view the petition is devoid of merits. I therefore, pass the following order:
(a) Arbitration Petition is dismissed.
(b) The respondents are directed to maintain proper books of accounts of the suit firm and shall furnish inspection and copies thereof to the petitioner from time to time.
(c) There shall be no order as to costs.