NARAYAN KHANDELWAL Vs. BARMESHWAR PANDEY

JUDGEMENT

(1.) SINCE common questions are involved in both the appeals which arise out of one order, they were heard together and are being disposed of by this common Judgment. Aggrieved by the Order Dated 18.9.2008 passed by the Learned District Judge, Balasore -Bhadrak, Balasore in Arbitration Petition No. 66 of 2008 in exercise of the powers under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act'), the Appellants have filed these appeal.

(2.) IN short, the prayer made in each of the appeals is stated below: Arbitration Appeal No. 25 of 2008.after hearing the parties allowed the appeal with cost by setting aside the impugned order dt. 18.9.08 passed by the Learned District Judge, Balasore in Arbitration Petition No. 66/2008. Arbitration Appeal No. 27 of 2008.and after hearing the parties set aside the impugned Order Dated 18.8.2008, appoint the Appellants as the receiver of the business, and in the alternative delete Clause (ix) from the Judgment.

(3.) THE Learned District Judge after hearing both the parties came to the conclusion that entering into the partnership agreement by Opposite Party No. 1 with the Petitioners is not amounting to letting out of the toll gate in any form and Opposite Party No. 1 therein is to honour the partnership agreement and the partnership agreement is not determinable by Opposite Party No. 1 as he disputed the partnership agreement. So far as appointment of receiver was concerned, he recorded that the Petitioners who are the Appellants in Arbitration Appeal No. 25 of 2008 have a strong case for appointment of receiver, as they contributed their money and they are the partners for which they were entitled to their share of profits and if they were kept out of business, they will be deprived of their profits. As Opposite Party No. 1 is disowning the Petitioners and Opposite Parties 2 and 3 as partners though he entered into an agreement with them, Opposite Party No. 1 is mismanaging the collection from the toll gate and as such the balance of convenience of appointment of receiver also leans in favour of Petitioners and Opposite Parties 2 and 3 who command 80% share and the said money was invested while getting the toll gate collection assignment from OBCC. So far as irreparable injury is concerned, the Learned District Judge observed that unless a receiver is appointed the actual income of the toll gate and the consequential loss sustained by the Petitioners every day cannot be assessed as there is mismanagement with regard to collection demanding immediate action. It is just and convenient for appointment of receiver in respect of management of the BMB toll gate under Section 9 of the Arbitration and Conciliation Act, 1996. On the aforesaid finding, he appointed Barmeswar Pandey -Opposite Party No. 1 therein as receiver of the toll gate. As the Petitioners therein stated that they were out of management of collection of toll from BMB Road Toll Gate, the Learned District Judge while appointing the receiver, put the following conditions: