PAPIYA MUKHERJEE Vs. ARUNA BANERJEA

JUDGEMENT

(1.) This application under Sec. 11 of the Arbitration and Conciliation Act, 1996 has been filed by the applicant for appointment of arbitrator to resolve dispute between the parties.

(2.) Plea of the applicant is that she is one of the partners of pathological laboratory namely, Calcutta Clinical Laboratory. The said laboratory is being run by virtue of the original partnership deed which was constituted and re-constituted from time to time. In 1980, fresh partnership deed was executed between Dr. Bonbehari Banerjee, Dr. Dhrubajyoti Banerjea and the applicant. Dr. Bonbehari Banerjee had passed away, therefore, on 20th of May, 1992 Dr. Dhrubajyoti Banerjea and the applicant had entered into a fresh deed of partnership for running the said laboratory business. Dr. Dhrubajyoti Banerjea being of old age had executed the power of attorney in favour of his wife, respondent No.1 herein. Dr. Dhrubajyoti Banerjea also passed away on 09th of April, 2015. Further case of the applicant is that in terms of clause 9 of the partnership deed, respondent Nos.1 and 2 being surviving legal heirs and successors of Dr. Dhrubajyoti Banerjea ought to have been substituted as partners in his place. After the death of Dr. Dhrubajyoti Banerjea, the respondent No.1 started committing various illegalities in relation to the business of the firm, therefore, the applicant had filed application under Sec. 9 of the Act being Miscellaneous Case No. 99 of 2016 and restrained order was passed on 16th of March, 2016. Subsequently, the arbitrator was appointed and arbitration proceedings continued for more than 4 years in which both the parties had actively participated and after October, 2016 the applicant was allowed to actively participate in the affairs of the laboratory after giving an undertaking by the respondent before the learned arbitrator. Since, talks of settlement took place, therefore, the arbitration proceedings did not proceed further. Around December, 2019 respondent again started creating trouble, therefore, applicant had served the notice dtd. 10/6/2020 invoking the arbitration clause and making request to the respondent to appoint the arbitrator. The respondent had denied the prayer by taking the stand that there was no valid arbitration agreement between the parties.

(3.) Submission of learned Counsel for the applicant is that after the death of Dr. Dhrubajyoti Banerjea, respondents being his legal heirs are bound by the arbitration agreement and that earlier arbitration had already taken place and in fact after dissolution of partnership, subsequently respondent No. 1 was shown as partner and that same objection raised by the respondent in the proceedings under Sec. 9 of the Act were rejected.