DIPAKKUMAR NATHABHAI PATEL Vs. NARMADABEN DHIRAJLAL RADADIA

JUDGEMENT

(1.) This petition is filed under sec. 11(6) of the Arbitration and Conciliation Act , 1996 (hereinafter referred to as 'the Act' for short) seeking appointment of Arbitrator contending inter alia that petitioner and respondents had entered into a partnership agreement on 2/3/1994 and one of the partner namely Rameshbhai Ishwarbhai Patel was relieved from the partnership and thereafter a new partnership agreement came to be executed on 1/7/1998 under which the petitioner - applicant and the respondent Nos. 1 to 3 became partners of the firm under which the applicant has been given 25% of the share. It is further contended that on account of certain disputes having arisen between applicant and respondents, the applicant had filed a Regular Civil Suit No. 486 of 2005 before Civil Judge (Senior Division), Vadodara as well as Regular Civil Suit No. 409 of 2006 and Regular Civil Suit No. 746 of 2007 for various reliefs, which came to be disposed of on the ground that deed of partnership contained arbitration clause. Hence, it is stated that on disposal of suits, applicant had got issued notices to the respondents calling upon the respondents to give their consent for appointment of sole arbitrator, to which the respondent No. 1 objected. Respondent No. 3 did not object and no reply is issued by respondent No. 2. Hence, applicant has sought for appointment of an arbitrator.

(2.) On notice being issued, respondent No. 1 appeared and filed affidavit-in-reply denying the averments made in the petition except to the extent expressly admitted thereunder. It is stated that "Aadarsh Pharmacy and General" was an unregistered firm and was reconstituted by partnership deed dtd. 1/7/1998, whereunder it was agreed that partnership was determinable at Will. It is also stated that said partnership was dissolved in the year 2005 after meeting came to be held on 9/5/2005, wherein it was agreed by the partners that petitioner would be removed from the firm and consequently dissolved the firm. It is contended that in furtherance of the meeting, minutes came to be drawn and respondent Nos. 2 and 3 executed a dissolution deed dtd. 16/5/2005 and even on request being made, petitioner did not affix his signature to the said dissolution deed and as such respondent No. 1 is said to have intimated the applicant on 16/5/2005 about his removal from the Firm and consequently dissolution of the firm. It is further contended that in the suits which came to be filed, the respondent No. 1 had filed an application under sec. 8 of the Act which came to be allowed and suit came to be disposed of vide order dtd. 8/3/2007. It is contended that thereafter petitioner filed third suit being Regular Civil Suit No. 764 of 2007, which came to be disposed of vide order dtd. 10/6/2013. Hence, contending that claim of the petitioner is hopelessly barred by limitation and by attempting to revive the dead cause of action, the present application has been filed. Hence, 1st respondent has prayed for dismissal of this application.

(3.) Heard Shri Jigar Gadhvi, learned advocate appearing for petitioner and Shri Dipen Shah, learned advocate appearing for respondents. Perused the records.