PARWATI DEVI Vs. KESARWANI AND COMPANY

JUDGEMENT

(1.) The Petitioners are legal heirs of Late Sri Bhairon Nath Kesharwani, who was a partner in the first Respondent-firm. Late Bhairon Nath Kesharwani was holding 13% share in the partnership firm and was working partner in the firm, entitled to salary remuneration of Rs. 7000/- per month. In terms of Clause 5 of the partnership deed, the duration of the partnership was at Will. Clause 23 of the partnership deed sets out that in case of death or retirement of any partner the firm shall not be dissolved automatically but shall continue to be carried on with the remaining partners with such modified terms and conditions as may be agreed between them. The retiring or outgoing partner/partners shall have no right in the Goodwill, Assets, Sole selling agency business or any other rights and privileges attached to this firm and shall only be entitled to his/her credit balance if any after adjustment of profit and loss of his/her share in the firm. Clause 24 of the deed reads as under:

(2.) It is the case of the Petitioners that Late Bhairon Nath Kesharwani, during his life time, executed a registered Will dated 23.06.2009 leaving his immovable and movable assets and properties in favour of the Petitioners.

(3.) The Power of Attorney of the Petitioners, Smt. Kamla Devi, who is their real mother, sent a registered notice dated 23.6.2009 to the Respondent-firm to pay capital balance standing in the name of Late Bhairon Nath Kesharwani. The Respondent-firm, by letter of 6.7.2009, asked the Attorney of the Petitioners to furnish the certified copy of the registered Will and Power of Attorney along with Succession Certificate. On 20.7.2009, the Attorney of the Petitioners furnished the certified copy of the registered Will of Late Bhairon Nath Kesharwani and the registered General Power of Attorney executed by the Petitioners in favour of their mother. As the bona fide request of the Petitioners did not evoke any response, another registered notice dated 8.3.2010 was sent to the Respondent-firm and its partners individually for payment of capital balance of late Bhairon Nath Kesharwani to the successor, namely, the Petitioners. This in action on the part of the Respondent-firm, according to the Petitioners, is flagrant violation of Paragraph 23 of the Partnership Deed, resulting in an arbitral dispute and as such, a request was made to appoint an Arbitrator by mutual consent. A further notice was sent on May 31, 2010 for appointment of an Arbitrator, informing the Respondent-firm that failing which, the Petitioners would apply under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act').