JASVINDER SINGH Vs. JAI INDER PAL SINGH

JUDGEMENT

(1.) The Petitioner filed the present petition under Section 9 of the Arbitration and Conciliation Act, 1996, against the Respondent for the grant of ad interim relief by restraining the Respondent from carrying the business of M/S Sanjeevan Hospital Mandi, exclusively or from using the name, goodwill or assets/property of the erstwhile partnership from M/S Sanjeevan Hospital until the affairs of the firm has been completely wound up in accordance with the provisions of the Indian Partnership Act, 1932 and further restraining the Respondent from selling, transferring or changing the nature of the property or assets of the erstwhile firm M/S Sanjeevan Hospital.

(2.) As per the allegations in the petition, both the parties were partners of the partnership firm under the name and style of M/S Sanjeevan Hospital, which came into existence on 1.12.1992, which was followed by a supplementary agreement dated 14.12.1992 and thereafter, a fresh partnership deed was executed on 23.8.1993 Subsequently, two new partners were added on 1.4.1994 and subsequently, one of those partners retired from the firm on 1.9.199 and subsequently on 10.7.2003 the other partner also retired from the partnership and thereafter, only the Petitioner and Respondent remained the partners of the said firm. It was alleged that the share of the Respondent was 75%, while that of the Petitioner was 25% in the said partnership. It was alleged that doubts and differences started between the two partners, as a result of which, various correspondences was exchanged between the parties and ultimately on 27.12.2004, the Respondent served a notice upon the Petitioner dissolving the partnership firm with effect from 1.4.2005 and the Petitioner had sent replies to the said notice, whereupon the Respondent sent a reply. It was alleged that the Respondent also issued a public notice in newspaper with regard to the dissolution of the partnership firm. It was further alleged that as per Clause xvi of the partnership deed dated 10.7.2003, in respect of the reconstituted firm, all the disputes relating to the partnership business between the parties etc. were to be referred to the arbitrations of two independent persons to be appointed by consensus. It was alleged that in pursuance thereof, the Petitioner had served a notice upon the Respondent on 10.5.2005 calling upon to him to give consent for appointment of Arbitrators to adjudicate the dispute between the parties and that so far, the Respondent had not given his consent for appointment of the Arbitrators. The Petitioner filed the copies of the balance sheet of the firm from 1992 onwards uptil 31.3.2004 alongwith the petition. It was further alleged that the firm was paying rent in respect of the premises in which the said hospital was being run by the partnership firm. It was alleged that various equipment etc. installed in the said hospital was the property of the firm. It was alleged that after the dissolution of the firm, the Respondent was illegally and without the consent of the Petitioner running the business of dissolved firm under the same name and style and was utilizing the aforesaid property and equipment of the firm including the goodwill of the firm. It was alleged that under the law till the entire affairs of the firm were completely wound up in accordance with the provisons of Indian Partnership Act, the Respondent was not entitled to use the goodwill/ name, property, assets etc. of the firm exclusively for his benefit and was not entitled to claim himself to be the sole proprietor of the said firm after its dissolution. It was further alleged that on the facts and circumstances of the present case, the Respondent was liable to be restrained by way of interim injunction order from doing so till the time affairs of the firm were wound up. It was accordingly, prayed that the Respondent be restrained from utilising the name or assets, goodwill and property of the firm exclusively for himself to the detriment of the Petitioner until the affairs of the firm had been completely wound up. It was further alleged that the Respondent be also restrained from transferring or alienating the property of the firm in any manner whatsoever. In the alternative, it was prayed that a receiver may be appointed in respect of the property/assets of the firm to take control and to run the business of the firm till it is wound up.

(3.) In the reply filed by the Respondent, various preliminary objections were taken including the plea that the Petitioner had over withdrawn approximately a sum of Rs. 15 Lacs over a period of last 12 years. On merits, it was alleged that the Petitioner had accepted his share to be 25% in the various partnership etc. signed by him. Various averments regarding dissolution of the partnership firm w.e.f. 1.4.2005 were also admitted and also with regard to service of notice for giving consent for appointment of arbitrators. It was further alleged that the Petitioner was an Advocate by qualification and was looking after the accounting and administration jobs of the hospital known as Sanjeevan Hospital, whereas the Respondent being a reputed and experienced Doctor for the last 30 years had taken over the change of the hospital after the dissolution of the firm on 31.3.2005 and the Petitioner had not even bothered to look after the administrative work entrusted to him and had totally mismanaged the accounting part. It was alleged that the Respondent was presently running the hospital in a very smooth way and presently 200 patients are visiting the hospital daily, there are 25 indoor bed for the patients 25 delivery cases are being handled every month and 70 employees are working in the hospital alongwith six consultant doctors. It was alleged that the medicines worth Rs. 15 Lac were lying as stock in trade having the dates of expiry and in case these medicines were not utilized, the hospital would suffer huge loss. It was alleged that Rs. 2.75 Lacs is being paid as salary to the employees every month and Rs. 30 Lacs is payable as on date by the hospital to the employees towards the amount of gratuity. It was alleged that the various loans from the bank had been taken for which the Respondent had mortgaged his property. It was further alleged that any disturbance created by the Petitioner in the smooth running of this medical institution will defeat the very purpose of the service to the public at large. It was alleged that under these circumstances, if the work of the hospital is closed down, not only the Respondent but the general public visiting patients besides employees including the doctors would suffer irreparable loss.