GAJANAN S. SAWANT Vs. SUHASINI R. SAWANT

JUDGEMENT

(1.) HEARD Shri C. Mascarenhas, learned Counsel appearing for the appellant and Shri A. Nachinolkar, learned Counsel appearing for the respondent. The above appeal challenges the judgment dated 01.09.2010 passed by the learned District Judge, North Goa, Panaji, in Civil Misc. Application No. 189/2009 whereby an application filed by the appellant under Section of the Arbitration and Conciliation Act, 1996 came to be dismissed.

(2.) THE admitted facts of the case are that the appellant was carrying on the business in partnership firm under the name and style of M/s R.S. Sawant and Brothers along with his late brother in terms of the Deed of Partnership dated 12.08.1985 and the subsequent Deed dated 1.6.1992, the partnership was at will. The respondent was inducted in the partnership in terms of the Deed dated 30.08.1996 upon the death of the brother and the business continued thereafter. It is the contention of the appellant that the disputes and differences arose between the parties in the year 2003 when it was decided to put an end to the business and settle the accounts amicably. The draft agreement was prepared for the purpose of distributing the assets of the partnership which was dated 21.12.2003 but however there was a dispute with regard to said agreement as it is contended by the respondent that there were minutes signed between the parties which resulted in an agreement between the parties on 21.12.2003. The respondent thereafter initiated a suit before the learned Judge for the dissolution of the partnership and partnership assets and for accounts. But however, in view of the application filed by the appellant herein under Section of the Arbitration and Conciliation Act, 1996, the matter was directed to be referred to Arbitration by order dated 18.10.2007. Accordingly, it is not in dispute that the Arbitral Proceedings with regard to the disputes between the parties are in progress and not yet disposed of. It is further the contention of the appellant that the partnership owned certain assets including the shops and flat at Vishnukamal Apartments and another flat in Chaitanya apartment apart from the basement office premises, vehicles, construction material as well as a plot no. 34 at Jayceenagar, Ponda which is the subject matter of the above appeal. It is further the case of the appellant that the Deed of Sale dated 01.06.1987 was on behalf of the partnership firm and from the funds of the partnership firm a bungalow was proposed to be constructed by the said firm in the year 2000 which thereafter came to be abandoned in the year 2003. It is further the case of the appellant that on 03.12.2009 the appellant learnt that the respondent had restarted the work of the proposed bungalow and upon inspection, it reveals that she was engaged in completing the ground floor. The appellant raised an objection to such activity on the part of the respondent but however she refused to accede to the request of the appellant to stop such activity and proceeded with such construction activity. The construction licence was issued on 28.09.2000 and the same had expired on 27.09.2001. It is further admitted that the licence was obtained in the name of the respondent but however according to the appellant it was only for the sake of convenience. It is further the case of the appellant that the disputed plot is a partnership asset and the respondent has no right to interfere in any manner after the dissolution of the partnership on 08.09.2003. Consequently, an application came to be filed under Section of the Arbitration and Conciliation Act, 1996 for an order of injunction restraining the respondent from carrying out any construction work in the disputed plot and taking the possession of the disputed plot.

(3.) THE learned Judge by the impugned judgment dated 01.09.2010 dismissed the application filed by the appellant. The learned Judge after considering the judgments relied upon by the learned Counsel appearing for the respective parties came to the conclusion that the Deed of Partnership dated 01.06.1992 between the appellant and the late husband of the respondent was at will and that the respondent had joined as a partner in the business on 30.8.1996. The learned Judge further found that there were minutes of meeting which were duly signed by the parties and that the draft agreement would have to be considered in the context of such minutes of the meeting. The learned Judge has further found that the appellant had admittedly written to the respondent on 19.11.2007 by which he had admitted the meeting on 21.12.2003 in their office for the settlement about the dissolution of the firm and that the minutes were drawn on the said date. The learned Judge further found that in the statement of claims of the appellant the disputed plot no. 34 was claimed by the appellant as an asset of the partnership. The learned Judge also found that there were 14 claims put forward by the appellant which were not relating to the disputed plot. The learned Judge took note of the contention of the respondent that right from the time she was inducted as a partner in the firm after the death of her husband, the appellant had not given any accounts nor paid any amounts to her. The learned Judge also took note of the fact that there were attempts to settle the dispute. The learned Judge further took note of the minutes of the meeting dated 21.12.2003. The learned Judge also took note of the fact that the appellant had admitted to have tentatively divided the assets on certain conditions and that the agreement was recorded in writing. The learned Judge also took note of the letter dated 26.01.2004 wherein it is stated that there is a clear and unequivocal admission of the respondent being the exclusive owner of the disputed plot and being put in possession thereof. The learned Judge also took note of the fact that in case the construction is permitted to be carried out by the respondent, it would only enhance the value of the property and would not diminish it. The learned Judge as such rejected the application filed by the appellant for temporary measures under Section of the Arbitration and Conciliation Act. Being aggrieved by the said judgment, the appellant has preferred the present appeal.