SHYAM KAMAL SHARMA Vs. ARUN KAMAL SHARMA

JUDGEMENT

(1.) The petitioners of CWP No.5432/2010 have preferred this intra-court appeal for being aggrieved of the order dated 03.08.2010 whereby the learned Single Judge has dismissed the writ petition. 1. The writ petition aforesaid was filed by the petitionersappellants seeking to question the order dated 03.01.2010 as passed by the sole arbitrator who has entered into reference pursuant to the agreement of the parties that culminated into the order dated 16.04.2009 passed by this Court (Single Judge) in S.B.Civil Misc.Appeal No.868/2008. The respondent No.1 submitted the statement of claim before the sole arbitrator seeking adjudication of various issues including the one that the dissolution dated 31.03.2003 be declared null and void. Per contra, the appellants submitted that the fact of the dissolution of the partnership with effect from 31.03.2003 was accepted by the respondent No.1 in CMA No.868/2008 and such an issue regarding dissolution of firm with effect from 31.03.2003 was not open for adjudication.

(2.) The learned arbitrator over-ruled the primary objection by his order dated 03.01.2010 while saying,- In a suit for dissolution of partnership at will, court fixes a date from which partnership is to be dissolved. In present case the date of dissolution of partnership firm is not admitted. Only the fact of dissolution has been admitted before Hon'ble High Court. Therefore the arbitral tribunal has to decide the date of dissolution of partnership firm and which can only be decided after going through the pleadings and the documents submitted by the respective parties. The question of dissolution of firm in some cases it may be a question of fact or it may be a question of law and also may be question of law and facts. It is right of the partners to have business would up after dissolution and to have the property of the firm applied in payments of debts and liabilities of the firm and to have the surplus distributed among them or their representative. Therefore it is necessary to arrive at a definite date of dissolution and then the question of settlement of accounts arise on date of dissolution. And after discharging the liability the remaining will be distributed among the partner as per their share. Therefore no specific claim can be decided in the absence of date of dissolution.

(3.) The petitioners-appellants preferred the writ petition against the order aforesaid and contended that the factum of dissolution and its date i.e., 31.03.2003 stood concluded by the order passed by this Court on 16.04.2009.