ANOOP PURI Vs. SURINDER KUMAR KHURANA

JUDGEMENT

(1.) THE petitioner Anoop Puri, Proprietor of Saraswati Press carries on business of printing at 3, Deshbandhu Gupta Road, New Delhi. THE petitioner granted a licence to Surinder Kumar Khurana, Proprietor of M/s. Printrade (respondent No. 1) for the use of his two printing machines on payment of monthly licence fee at Rs. 3000.00 payable in advance every month for a period of two years in terms of the agreement dated 8th March, 1978. Respondent No. I was entitled to run. the machines on trial basis in the first instance for three months and thereafter be had an option to discontinue the use of the machines. THE petitioner had a right to revoke the licence for breach of any of the terms of the licence agreement. THE petitioner revoked the licence on 31st May, 1979 by telegram and notice on account of alleged breach of terms. Respondent No. I, it is alleged, failed to pay licence fee, telephone and electricity bills amounting to Rs. 20,005.29 as on 31st May, 1979 in spite of reminders. Respondent No. I raised disputes and demanded compensation for alleged wrongful cancellation of the licence before the expiry of two years. THE petitioner has alleged that on 8th June, 1979 the respondent No. I accepted that his licence had been properly and validly concelled, that the petitioner stood absolved of his liability whatsoever in respect of the agreement dated 8th March, 1968, that respondent No. 1 paid the arrears of licence fee that there was a full and final settlement of accounts and no dispute whatsoever relating to the said agreement survived, that he was fully discharged and a discharge certificate- was executed on 8th June, 1979 by the parties in the presence of witnesses, that a receipt for having received back machines and .amount in full and final settlement was issued by the petitioner. Respondent No. 1 sent a notice dated 20th June, 1979 demanding Rs. 3,00,000.00 on account of alleged loss and damages due to illegal cancellation of the licence. THE petitioner repudiated . the demand. Respondent No. 1 sent another notice dated 28th July, 1979 informing that he had appointed Shri Manohar Lal Bhargav, Advocate, respondent No. 2 as his arbitrator and called upon the petitioner to appoint his arbitrator within fifteen days in terms of clause 17 of the agreement. THE petitioner has further alleged that he could not appoint an arbitrator on the ground that no agreement of reference survived after revocation of licence on 31st May, 1979 and full and final settlement of disputes on 9th June, 1979. THE petitioner by this application under Sections 5, 9(bJ and 33 of the Arbitration Act prays for a declaration that agreement of reference no longer subsists. In the alternative he prays that he be allowed to appoint his own arbitrator and the appointment of respondent No. 2 as sole arbitrator be set aside.

(2.) RESPONDENT No. 1 has pleaded that he never committed breach of any term of the licence agreement dated 8th March, 1978 that the sum of Rs: 20,605.29 was not due from him as on 31st May, 1979, that the petitioner prevented him and his employees from entering the premises and using the two machines by locking the premises and posting goondas at the gate, that .he had no right to revoke the licence before the expiry of two years, that notice of one month for termination of the licence as agreed was not served by the petitioner. Cancellation of licence on 8th June, 1979 is denied. RESPONDENT No. 1 has further alleged that he was made to put his signatures on the discharge document dated 8th June, 1979 under coercion RESPONDENT No. 1 appointed, re.spondent No. 2 as Sole Arbitrator under Section 9(b) of the Arbitration Act as the petitioner failed to appoint his arbitrator interms of clause 17 of the agreement in spite of notice and waiting for 45 days. It is denied that agreement of reference does not survive. He asserts that respondent No. 2 was rightly appointed as Sole Arbitrator. The petitioner in his rejoinder has denied all the allegations of respondent No. 1.

(3.) ARGUMENTS in the above case were concluded on 16th March, 1983 and judgment was reserved. Learned counsel for the petitioner made an application (I A. No. 1309 of 1983) dated 21st March, 1983 under Section 151 of the Code of Civil Procedure informing this court that Shri Anoop Puri, petitioner was flown to London on 13th March, 1933 and he died on 17th March, 1983 at 4.30 a.m. (IST). By this application he has prayed that he may be given time for bringing on record the legal representatives of the deceased petitioner. Notice of this application was served upon the respondent's counsel. He submits that the petitioner died after the conclusion of the hearing and before pronouncing the judgment and therefore the petition would not abate by reason of the death of the petitioner and non-substitution of his legal representatives. Order 22 Rule 6 of the Code of Civil Procedure reads as under: