JUGAL KISHORE Vs. RAMESH CHANDRA

JUDGEMENT

(1.) The, petitioner has filed this petition under Section 115, C.P.C. against the order of Shri Sateesh Chandra Mittal, R.H.J.S. District Judge, Jodhpur passed in Civil Misc. Case No. 23(B) / 95 Jugal Kishore v. Ramesh Chandra on 18-11-1995.

(2.) The material facts may be stated succinctly which are necessary for the disposal of this petition. The petitioner alleged that there was a partnership agreement between the parties and they carried on business in the name and style "M/s. Jugal Kishore Mahesh Chandra". The partnership agreement contained a clause for referring the dispute arising between the parties to arbitration. The petitioner alleged that a dispute arose between the parties inasmuch as the non-petitioner started his own business which was not warranted according to the partnership agreement of the parties and also began to mismanage the business and the property of the partnership venture. The petitioner has, therefore, filed an application under Section 8 of the Arbitration Act for appointing an arbitrator. The petitioner also moved another application purporting to be under Section 41(b) of the Arbitration Act for appointment of a receiver in order to manage the business and property of the partnership firm. The learned District Judge disposed of both the applications simultaneously. The first application was allowed and an arbitrator was appointed by the learned District Judge. However, the learned District Judge dismissed the second application on merits. He discussed the facts and circumstances of the case and found that no case was made out for appointing a receiver in accordance with the settled principles laid down by Courts for appointing a receiver. He, therefore, dismissed the application filed under Section 41(b) of the Act.

(3.) I have heard learned counsel for the petitioner and non-petitioner. Learned counsel for the petitioner has invited my attention to clause (b) of Section 41 of the Act and submitted that the Court has got power to make appropriate orders in respect of any matters set out in the Second Schedule of the Act. The Second Schedule relating to Section 41 contains the powers of the Court. Item No. 4 of Second Schedule contains a provision for appointing a receiver in accordance with the provision of Code of Civil Procedure. The learned counsel, therefore, submitted that the Court had jurisdiction to entertain the application filed by the petitioner under Section 41(b) of the Act and could have appointed a receiver in the facts and circumstances of the case. He also submitted that the petitioner detailed various acts of omission and commission committed by the non-petitioner in relation to the business and property of the partnership firm. These allegations were supported by his affidavit. The learned District Judge has, therefore, committed an error in not excercising his jurisdiction in declining to appoint a receiver which was most appropriate in the facts and circumstances of the case. Supplementary affidavits were also filed.