YASHVANT CHUNILAL MODY Vs. YUSUF KARMALI KERWALA

JUDGEMENT

(1.) This is an application for appointment of a sole arbitrator U/s.11 of the Arbitration and Conciliation Act, 1997 (the Act) by the Applicant who is one of the eight partners of the partnership firm of which the arbitration agreement is alleged. Several of the partners have expired. Their heirs and legal representatives are some of the Respondents. The claim of the Applicant is of having entered into a partnership on 1st April, 1974 consequent upon the introduction of the partners in February, 1974 and their desire to carry on joint business since March, 1974.

(2.) It is the Applicant's case that initially the written agreement between the parties was not executed. It has been executed on 24th September, 1975 after the oral partnership without any formal document came into existence. In fact it is one of the claims that no formal partnership deed was initially executed upon certain advise (presumably legal). This is specifically stated in view of the facts which shall be considered presently. The partnership was to be between the parties and the joint business of the partners was to be the business of dairy farming. The Applicant had certain cattle. He wanted to expand his business. He wanted to purchase a farm and obtained new cattle and carry on dairy business.

(3.) In fact an agreement was entered into in the name of one V.Y. Shah and Co. for purchase of the land on which the business would be carried out. Earnest of Rs.20,000/ was paid out of the total consideration of Rs.1.76 lacs for the purchase of the land. The agreement was executed on 31st December, 1974. Thereafter a conveyance has been executed in 1975. The date of the execution of the conveyance is not shown in a photocopy of the unregistered conveyance produced by the Applicant. The conveyance is in the name of the partnership firm between the parties. It appears to be executed well after at least 19th July, 1975 which date is recited in the conveyance. The conveyance is for Rs.1.50 lacs, Rs.20,000/ being the earnest paid on 31st December, 1974, the date of the agreement. Rs.1.30 lacs is paid on 24th May, 1975 constituting the full consideration of Rs.1.50 lacs. The conveyance appears to have been lodged for registration on 29th July, 1976. The unregistered conveyance came to be registered under a deed of confirmation executed on 10th June, 1981 by the partnership firm as the purchaser.