MADHUKANTABEN NAGINDAS SHETH Vs. ARVINDLAL KANTILAL AND CO

JUDGEMENT

(1.) This appeal from order arises at the instance of the original plaintiff who has challenged the order dated GIst October 1980 passed below Exhs. 9 and 13 in Special Civil Suit No. 27 of 1979 by second Joint Civil Judge (Senior Division). Godhra wherein the above applications preferred under sec. 34 of the Arbitration Act 1940 were allowed and the suit of the plaintiff was ordered to be stayed.

(2.) In order to appreciate the rival contentions it would be necessary to state a few relevant facts. The plaintiff is the widow of one Nagindas Kalidas Sheth who expired on 12/11/1978 The deceased husband of the plaintiff was a party to the deed of partnership dated 13/12/1977 of the firm which was carrying on business in the name and style of Messrs. Arvindlal Kantilal and Co. The plaintiff claims that she is the sole heir of the deceased. The plaintiff has alleged that when her husband expired he had as deposit an amount of more than Rs. 1 lakh in the said firm Rs. 1 20 0 as fixed capital and he was receiving some remuneration for managing the firm. The deceased husband was also entitled to a share of profits of the said firm till the time he expired. The plaintiff further alleges that after the death of her husband she had demanded the aforesaid from the defendants but no heed was paid to the same. Ultimately she served a notice dated 29/01/1979 through an advocate and defendant no. 1 replied to the same but the defendants had not paid any heed to her demands and had declined to account. The plaintiff has the-refore filed the aforesaid suit for accounts as well as for the appointment of a Receiver of defendant no. 1 firm in respect of which a new deed dated 18/12/1978 had been executed

(3.) Exh. 9 is an application which was preferred by defendant no. 2 under sec. 14 of the Arbitration Act praying for stay of the suit. Exhibit 13 is another application preferred by defendant no. 1 under the signature of defendant no. 2 as a partner wherein also it has been prayed that the suit be stayed under the said sec. 34. Both the applications are similar and raise the same contentions. The said applications were resisted by the plaintiff as per the reply Exhibit 14. The trial Court in the aforesaid circumstances had disposed of the said application in favour of the defendants ordering stay of the proceedings as per the order under appeal.