BEENA THOMAS Vs. SMITHA JOBY AND ANR.

JUDGEMENT

(1.) Can the plaintiff in a suit seek arbitration in respect of the subject matter of the suit by filing an application in the Court? This is the question which essentially falls for consideration in this application filed under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act'). The application is one filed by the appellant. She is the plaintiff in the suit O.S. No. 55 of 2017 on the file of the Subordinate Judge's Court, Perumbavoor. The appeal is filed by her challenging the order passed by that Court dismissing the application filed by her as I.A. No. 675 of 2017 for the appointment of a receiver.

(2.) The suit is instituted for granting a decree for dissolution of a firm namely "Ticon Packaging" at Muvattupuzha and for settlement of accounts and other reliefs. The plaintiff and the defendants are the partners of the aforesaid firm. The appellant/plaintiff filed an application as I.A. No. 675 of 2017 in the suit for the appointment of a receiver to manage the business of the firm allegedly being conducted by the first respondent. The plaintiff contended that the defendants were not taking any active role in running the business and they used to withdraw amounts from their personal account over and above the amounts due to them. The plaintiff also alleged that she was prevented by the defendants from entering into the premises of the firm. She further alleged that the defendants took away the books of accounts, computer, records relating to the bank accounts etc. Apprehending that the defendants would manipulate the accounts, stock of materials etc., the plaintiff prayed for the appointment of a receiver to take possession and custody of the business of the firm with all its assets including movable and immovable properties.

(3.) The respondents/defendants filed objections to the application for the appointment of receiver contending that the suit is not maintainable in view of the provisions contained in Section 69 of the Partnership Act, 1932 and that the partnership constituted as per the deed dated 17/01/2011 had already been dissolved by issuing notice of dissolution. They further contended that as per the terms of the partnership deed, the first party in the partnership deed has the right to take over the firm with all assets and liabilities of the dissolved firm and that the first defendant, who is the first party to the partnership deed, has taken over all the assets and liabilities of the dissolved firm. The defendants also contended that the prayer for appointment of a receiver after the dissolution of the firm is against the terms of the partnership deed.