KAILASH KUMAR AGARWAL Vs. DAYA SHANKAR JAISWAL

JUDGEMENT

(1.) THIS is an appeal under Order 43, rule 1 read with section 104 of the Code of Civil Procedure against the order of the trial Court on the applications for temporary injunction and appointment of a receiver.

(2.) THE case of the appellants is that the respondent Daya Shanker Jaiswal had taken contract for minor constructions and read metalling with the Western Coalfields Ltd. in its Jhagrakhand colliery. Sometime in December, 1974 he entered into an oral agreement with the appellants regarding the contracts taken by him from the Western Coalfields Ltd. It was stipulated that the partners shall share profit and loss equally. On 6-9-1976, a written partnership deed was executed by the parties. THE partnership since then has been registered with the Registrar of Firms under the provisions of the Indian Partnership Act. THE partnership deed stipulated that all disputes arising between the parties in connection with the partnership business shall be decided by arbitration. THE construction work came to an end and bills worth Rs. 1,01,750 were due for payment by the Western Coalfields Ltd. According to the appellants, the respondent started disowning the partnership and he withdrew a sum of Rs. 2,600 and another sum of Rs. 1,000 and appropriated these amounts to himself from the Western Coalfields Ltd. in connection with the said contract. THE appellants, therefore, filed an application under section 20 of the Arbitration Act before the District Judge for filing of the arbitration agreement and for appointment of an arbitrator for settling the dispute between the parties. THE application was opposed by the respondent and contended that the contracts in question was entered in the name of the respondent and it was his individual business and it has nothing to do with appellants. No such oral partnership was entered into. THE contract was taken in his individual name and could not have been sublet and the partnership, if any, entered into between the parties is invalid and inoperative. THEre is no dispute between the parties as all outstanding disputes were settled on 31-3-1978 and the appellants have separated after taking their due share in the profits. THE application is liable to be rejected.

(3.) THE respondent in his replies submitted that there is no case made out for granting temporary injunction or appointment of receiver. THE bills which are pending for payment with the Western Coalfields Ltd. are in connection with the contract taken by the respondent in his individual name and he alone is entitled to withdraw the bills. THEre was no partnership regarding the work executed and even if there was one, the same was invalid and inoperative as the respondent was not permitted to sublet his work. Besides the partnership, if any, came to an end on 31-3-1978 when the parties settled their accounts and the appellants separated after taking their due share in the assets and profits. THE trial Court by the impugned order held that since the bills are not yet encashed and therefore there is no property in existence for which a receiver could be appointed. THE application for appointment of receiver is misconceived and was rejected. Regarding grant of temporary injunction the trial Court held that the respondent had offered that his immoveable property worth about a lac of rupees may be attached. According to him he will be greatly prejudiced if he is restrained from encashing the bills of Western Coalfields Ltd. As the counsel for the appellants wanted time to verify about the immoveable property of the respondent, in the meanwhile, the respondent has been restrained from encashing the bills mentioned in Schedule A of the application except to the extent of Rs. 10,000. THE temporary injunction will continue as ad interim measure till the question of attachment of immoveable property of the respondent is decided. THE appellants were directed to file an application for attachment of the immoveable property of the respondent. Aggrieved by this order the present appeal has been filed.