AJAY TIWARI Vs. VIJAYENDRA BAJPAI

JUDGEMENT

(1.) This Application is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator for adjudication of the disputes between the parties.

(2.) It is the case of the applicant that applicant and the respondent are related to each other and in view of such relation, they entered into a Partnership Deed dated 29.01.1991 for carrying on business of C and F Agency of various companies and the business shall be run in the name of M/s.Arun Enterprises. Both of them are entitled to 50% of profits each. During the course of the business, the Partnership firm corroborated itself as C&F agent of M/s.Shell India Limited and M/s.Parry's Confectionary Ltd., with its operations at Kukatpally initially, which were subsequently shifted to Nacharam in the year 2005. They had taken a godown on lease at Nacharam admeasuring 13000 sq.ft, along with an open space situated at Sy.No.71, plot No.8-9-16/3, situated at Nacharam. Subsequently, they purchased the said property from the partnership funds and the said property became the property of the partnership firm. As per the mutual understanding between the partners, development and day-to-day management of the business was being looked after by the applicant and finances and accounts of the partnership firm was being looked after by the respondent. The respondent had been filing income tax returns of the firm under his signature representing the partnership firm and the applicant had no occasion to doubt the veracity of such returns filed by the respondent. During the course of the business of partnership firm, some portions of the go-down at Nacharam property were let out to different tenants and the respondent has been appropriating the rents. When questioned, the respondent failed to provide any information. The respondent, having control over the records of the firm and preventing the applicant from entering into the office premises and making it difficult for him to have daily access to his office premises in respect of their business. Disputes arose between the parties, since it is found that the respondent was acting against interest of the partnership firm and also against interest of the applicant in the partnership firm. The applicant got issued notice dated 29.03.2018 invoking arbitration clause 13 in the partnership deed, dated 29.01.1991. The said notice was returned with an endorsement as "?not claimed'. Hence, the present application is filed.

(3.) The applicant also filed additional affidavit dated 19.03.2019 stating that himself and the respondent had always been residing adjacent to each other at Tilak Road, since the inception of the partnership business. Thereafter, himself and the respondent shifted their residence to Ramanthapur in two adjacent plots i.e., H.Nos.3-14-12/F and 3-14-12/E respectively. As there are several disputes between the parties and they were not on good terms with each other, the applicant was not aware of the change of residence by the respondent, as the respondent's son still resides at the same address, that is the address on which Section 11 notice was sent and that on the date of sending notice under Section 11 of the Arbitration and Conciliation Act, the respondent was very much residing at the same address to which the notice was sent to and his son is still residing at the very same address.