ANIL GUPTA Vs. ATUL KUMAR GUPTA

JUDGEMENT

(1.) -

(2.) A family firm M/s Deoki Nandan and Sons carries on business at Delhi. The firm consists of lour partners. They are three brothers find a widow of a deceased brother. These are Atul Kumar Gupta, Anil Kumar Gupta, Sushil Kumar Gupta and Mrs. Sudha Gupta, wife of late Krishan Kumar Gupta. Of this partnership Atui Kumar Gupta is the managing[ partner. This firm has a large holding of shares in a company called Iron Traders Private Limited. The firm, its partners and other members of the family of 'the partners own shares in Iron Traders Private Limited. They have the controlling interest in the Company. Anil Kumar Gupta is the managing director ot the company. Disputes arose amongst the partners of the firm regarding the control of the company M/s. Iron Tiaders Private Limited. There is a clause of arbitration in the partnership deed of the firm. In terms of the arbitration clause the partners agreed to refer their disputes on March 10,1980 to Justice S.N. Andley (retired) as sole arbitrator.

(3.) THE arbitrator has found that the other party went on accepting the payments from Anil even after August 31, 1979. On that date Anil had failed to obtain the releases. This was the finding of the arbitrator. If there is no performance by a party on time, the other party can certainly rescind the contract. Where lime is of essence it means that performance on time is a condition of the other party's duty. THEre has to be a punctual performance. Anil obtained releases from the bank but that was on September 22, 1979. THEre was a delay in performance on his part. This delayed or defective performance on the part of Anil could be made a ground for terminating the contract by the other party. But the opposing party had to evince their intention to disaffirm the contract. THEre has to be unequivocal act of election which demonstrates clearly that the other party to the contract has made the choice to terminate the contract. This choice or decision has to be communicated in a positive or distinct manner. THE party must announce his election to the opposing party that the contract has been ended.