HIRUBHAI HIMABHAI PATEL v. V. H. PATEL & CO. — 1999 DIGILAW 759 (BOM)

ORDER 1. The petitioners have filed this petition challenging the findings on issue Nos. 8, 13 and 17 recorded by the Sole Arbitrator in his award dated 25th January, 1999 under sections 30 and 33 of the Arbitration Act, 1940. The facts that are material and relevant for deciding this petition are as under. 2. The firm M/s. V. H. Patel and Co. is a registered partnership firm. The business of the firm is manufacturing and selling chewing tobacco. Initially, the firm had four partners. It was registered in the year 1948. Subsequently, the partnership was reconstituted from time to time. There were three trade marks registered in the name of this partnership firm, on 1st July, 1987, a firm M/s. H. H. Patel and Co., was constituted with Hirubhai Patel and Co. and his two sons by name Pravinbhai and Dineshbhai as partners. In or about 1987, disputes and differences relating to the business of M/s. V. H. Patel and Co. arose between the partners of the firm. The differences were between the partner who had formed the other firm viz., M/s. H. H. Patel and Co. and the remaining partners. On 3rd July 1987, a writing in Gujarathi, referred to as an arrangement of mutual understanding, was executed between the main partners of M/s. V. H. Patel and Co. Under the said writing, all the three trade marks which were owned by the firm were to cease to be ownership of the firm and they were to be of joint ownership of all the partners of the firm. Further, the said writing provided that Hirubhai on one hand and the other partners on the other hand respectively were to use the trade marks separately only in the territories allotted to them under the writing. Admittedly, under the said writing dated 3rd July, 1987, division and allotment of areas of these registered trade marks to Hirubhai on one hand and the other partners on the other hand for sale, manufacture of tobacco by use of the said three registered trade marks was made on the basis of each partner's percentage in the share of profits and losses under the then existing deed of partnership dated 21st April, 1986 whereunder the share of Hirubhai was 22%. On 1st July, 1987, the said Hirubhai, along with the then partners of M/s. V. H. Patel and Co. On 1st July, 1987, the said Hirubhai, along with the then partners of M/s. V. H. Patel and Co. executed another document i.e., deed of retirement providing for retirement of the said Hirubhai as a partner of the firm M/s. V. H. Patel and Co. on certain terms and conditions mentioned therein. Clause (1) of the said deed of retirement provided inter alia that: "Upon this agreement becoming effective as specified in Clause (2) hereunder, the retiring partner in pursuance of the family arrangement, involving total separation of the retiring partner and the members of his family from the families and businesses jointly carried on (whether in partnership or otherwise) with the continuing partners and members of their families, shall be deemed to have retired from the firm w.e.f. August 1, 1987 and the retiring partner hereby confirms that except hereinafter specified, he has no right, title or interest in the said firm or any property or assets of the firm." Clause (2) of the said deed of retirement provided inter alia that: "The continuing partners have agreed to pay the various amounts due to the retiring partner towards the balance standing to his credit of his capital account as also the share of the retiring partner in the profits of the firm up to July 31, 1987. The said agreement was to be effective upon the date on which such agreed payment or the last installment of such agreed payment is made by the continuing partner. If such payment is not completed within the stipulated period of 10 (ten) months, this agreement shall be of no effect." Clause (4) of the said deed of retirement provided inter alia that: "The continuing partners and the retiring partner have examined and accepted the accounts of the firm upto the date of retirement as appearing in the books of account of the firm." 3. It appears that the disputes arose between the said Hirubhai on one hand and the remaining partners of the firm on the other hand, after this deed of retirement was signed, a civil suit being civil suit No. 186 of 1989 filed by Hirubhai against the firm M/s. V. H. Patel and Co. challenging the validity of the deed on retirement and for the declaration that he continues to be partner of M/s. V. H. Patel and Co. challenging the validity of the deed on retirement and for the declaration that he continues to be partner of M/s. V. H. Patel and Co. The remaining partners also filed a suit in the Court of District Judge at Jalgaon being suit No. 5 of 1989 for an injunction against the said Hirubhai and other partners of the firm M/s. V. H. Patel and Co. restraining them from using the trade marks. It appears that the parties had filed applications for temporary injunctions in their respective suits. The litigation emanating there from reached the Supreme Court by way of Special Leave Petition No. 11533 of 1990. In that petition on 15th February 1991, the Supreme Court, upon an agreement being reached between the parties, decided to refer the dispute to the arbitration of Sole Arbitrator who is Hon'ble Retired Judge of this Court. Thereafter, before the Arbitrator, the parties filed their pleadings, evidence was lead and the Arbitrator passed the award. By that award, the Arbitrator held that the writing dated 3rd July, 1987 as also the retirement deed dated 1st August 1987 are invalid. He held that the petitioner No. 1 - Hirubhai continues to be the partner of the firm M/s. V. H. Patel and Co. However, in terms of the award, continuance of the petitioner No. 1 as a partner of the Company was subject to the condition that he pays back an amount of Rs. 5,17,927.17 to the firm M/s. V. H. Patel and Co. It was also declared that the assets of the firm viz. registered trade marks can be used and exploited only by the partners of the firm viz., M/s. V. H. Patel and Co. in their capacity as partners of that firm. It transpires that before the Arbitrator, the petitioner No. 1 had submitted a counter claim claiming therein that as the continues to be a partner of the firm as the retirement deed is invalid, he is entitled to claim that the partnership firm should be dissolved and therefore, the Arbitrator should make an award for dissolution of the firm. However, the Arbitrator recorded a finding against the petitioner No. 1 for the reason that the Arbitrator has no jurisdiction to entertain that question. 4. However, the Arbitrator recorded a finding against the petitioner No. 1 for the reason that the Arbitrator has no jurisdiction to entertain that question. 4. In this petition, the petitioners have not challenged the finding recorded by the Arbitrator that the petitioner No. 1 herein continues to be a partner of M/s. V. H. Patel and Co. though the finding that the writing dated 3rd July, 1987 is invalid is challenged. It is the case of the petitioners that having found that the petitioner No. 1 continues to be the partner of the firm, as the partnership was at Will, the Arbitrator ought to have made an award for dissolution of the firm. 5. Shri Tulzapurkar, learned counsel appearing for the petitioners, made following submissions: (a) The finding that the writing dated 3rd July, 1987 is invalid has been recorded by the Arbitrator as can be seen from the award for the reason that the deed of retirement was found to be invalid and inoperative by the learned Arbitrator. According to the learned counsel, the finding that has been recorded by the learned Arbitrator that the writing dated 3rd July, 1987 is invalid in law, is unsustainable. The learned counsel further submits that the reasons that have been given by the learned Arbitrator in his answer to issue No. 7 for holding that both the documents viz., writing dated 3rd July, 1987 and the deed of retirement dated 1st August, 1987 are inoperative are unsustainable. He submits that it was nobody's case that the deed of retirement is invalid, therefore the writing dated 3rd July, 1987 is invalid. (b) The learned counsel submits that having found that the petitioner No. 1 continues to be the partner of the firm, the learned Arbitrator should have considered the prayer of the petitioner No. 1 for dissolution of the firm. The reason given by the learned Arbitrator for not considering this question viz., that the learned Arbitrator has no jurisdiction to dissolve the firm, in the submission of the learned counsel, discloses an error of law and therefore, according to the learned counsel, the award is liable to be set aside. 6. The reason given by the learned Arbitrator for not considering this question viz., that the learned Arbitrator has no jurisdiction to dissolve the firm, in the submission of the learned counsel, discloses an error of law and therefore, according to the learned counsel, the award is liable to be set aside. 6. The learned counsel appearing for the respondent No. 1 submits that insofar as the writing dated 3rd July, 1987 is concerned, the learned Arbitrator has by a non-speaking award held that document to be invalid in law and because this is a non-speaking award, this Court cannot go into the legality or otherwise of the findings recorded by the learned Arbitrator in that regard. He submits that the effectiveness of the deed or retirement dated 1st August, 1987 was totally dependent on the validity of the writing dated 3rd July, 1987 and as the writing dated 3rd July, 1987 was found to be invalid by the learned Arbitrator, he had no option but to conclude that the deed of retirement dated 1st August, 1987 is ineffective and inoperative. Insofar, as the submission regarding non-consideration of the prayer for dissolution of the firm by the learned Arbitrator in concerned, according to the learned counsel, dissolution of the firm was not a part of the reference that was made to the learned Arbitrator and therefore, the learned Arbitrator was right in holding that he has no jurisdiction to entertain the prayer for dissolution of the firm at the instance of the petitioner No. 1. 7. Now, if in the light of these rival submissions the record of the case is perused. It becomes clear that what was referred to the learned Arbitrator for decision was as under : "The disputes relating to the rights and obligations of the parties arising out of the agreement dated 3rd July, 1987 and the retirement deed dated 1st August, 1987 and the user of the trade marks in question and determination of the rights of the respondent No. 1 i.e., Hirubhai Patel as a partner of the firm as per pleadings of the parties in suit No. 5 of 1989 and suit No. 186 of 1989". Thus, what was to be considered by the learned Arbitrator was the dispute relating to the rights and obligations of the parties arising out of the agreement dated 3rd July, 1987 and the retirement deed dated 1st August, 1987. It was the claim of the respondents before the learned Arbitrator that the writing dated 3rd July, 1987 is invalid and because of those pleadings, the learned Arbitrator framed issue No. 8 which reads thus: "Whether the writing dated 3rd July, 1987 was invalid in law? Answer - In the affirmative." 8. Perusal of the reference to the learned Arbitrator quoted above shows that the question as such was not referred to the Arbitrator. However, that question arose because the Arbitrator was to decide the rights and obligations of the parties arising out of the writing dated 3rd July, 1987. It is clear from the pleadings of the respondents that they were claiming that the writing dated 3rd July, 1987 is invalid in law on several grounds including the ground that it is contrary to the provisions of the Trade Marks Act. It is dear from the judgment of the Supreme Court in the case of Tarapore and Co. v. Cochin, Shipyard Ltd. ( AIR 1984 SC 1072 = 1985 Arb. LR 1 (SC)), that if the question of law is incidentally decided by the Arbitrator, the Court has jurisdiction to set aside the award on the ground that there is no error apparent on the face of the record. Now, so far as the finding of the Arbitrator on the validity of the writing dated 3rd July, 1987 is concerned, the Arbitrator has not given any reason for recording that finding and therefore, as the Arbitrator has not recorded any reason, this Court cannot hold an enquiry into the validity or otherwise of the finding recorded by the Arbitrator. It is further to be seen here that it is dear from the two documents dated 3rd July, 1987 and 1st August, 1987 that these two arrangements were inter-dependent. In fact, the retirement deed recites that this agreement is for giving effect to the general family arrangement involving the total separation of the retired partner and members of his family from the family business jointly carried on by the partners and members of their families. In fact, the retirement deed recites that this agreement is for giving effect to the general family arrangement involving the total separation of the retired partner and members of his family from the family business jointly carried on by the partners and members of their families. The petitioner No. 1 does not make any grievance about that part of the award by which he is continued to be a partner of the firm M/s. V. H. Patel and Co. That award has been made by the learned Arbitrator because the learned Arbitrator held that the deed of retirement dated 1st August, 1987 is ineffective. In my opinion, having accepted the finding that the deed or retirement dated 1st August, 1987 is ineffective and therefore he continues to be the partner of the firm M/s. V. H. Patel and Co., the petitioner No. 1 cannot be allowed to challenge the finding that the writing dated 3rd July, 1987 has no effect. In may opinion, giving effect to the writing dated 3rd July, 1987 while continuing the petitioner No. 1 as a partner of the old firm M/s. V. H. Patel and Co. apart from being improper, would be inequitable. The writing dated 3rd July, 1987 and the deed of retirement dated 1st August, 1987 were entered into to settle the disputes among the members of the family, therefore either entire arrangement is to be given effect to or in case it is found that the entire arrangement cannot be given effect to, then the entire arrangement is to be given a go-bye. There was debate on the question whether the award of the learned Arbitrator is a speaking award or non-speaking award. The learned counsel appearing for the petitioners, relying on a judgment of the Supreme Court in the case of Jajodia (Overseas) Pvt. Ltd. v. Industrial Development Corporation of Orissa Ltd. ( (1993) 2 SCC 106 = 1993 (1) Arb. LR 334 (SC)), submitted that merely because the pleadings have been referred to, issues have been framed and answers have been recorded does not make the award a speaking award. In my opinion, it is to necessary for me to pronounce upon this controversy for the purpose of deciding the present petition. LR 334 (SC)), submitted that merely because the pleadings have been referred to, issues have been framed and answers have been recorded does not make the award a speaking award. In my opinion, it is to necessary for me to pronounce upon this controversy for the purpose of deciding the present petition. To my mind, it is dear from the award that except for answering issue No. 7 and issue No. 17, the learned Arbitrator has not given any reason and therefore, wherever the learned Arbitrator has given reasons, the validity of the reasons can be examined but wherever the reasons are not given the validity of that finding cannot be looked into unless there is an error apparent on the face of the record. The learned Arbitrator has held that the two documents, one dated 1st August, 1987 are inter dependent and 1st August, 1987 are inter dependent and therefore, if one is held to be invalid, the other has to be held invalid. In my opinion, as observed above, the reasons given by the learned Arbitrator are perfectly valid. It is further to be seen that it is clear from the award that the learned Arbitrator has held that the writing dated 3rd July, 1987 is invalid and therefore, it was not capable of being given effect to the next document dated 1st August, 1987 would be improper and inequitable. 9. Now, this takes to the real issue that arises in the present case i.e., whether the learned Arbitrator was justified in declining to entertain the prayer of the petitioner No. 1 for dissolution of the firm for the reasons that the learned Arbitrator has no jurisdiction to entertain that prayer. The learned counsel appearing for the petitioners submitted that perusal of the consent terms filed before the Supreme Court shows that what was referred to the learned Arbitrator was disputes relating to the rights and obligations of the parties arising out of the agreement dated 3rd July, 1987 and retirement deed dated 1st August, 1987 and the rights of the respondent No. 1 as a partner of the firm M/s. V. H. Patel and Co. as per the pleadings of the parties in the two suits. as per the pleadings of the parties in the two suits. According to the learned counsel, since the learned Arbitrator has found that the family arrangement that was arrived at between the parties is not binding and the petitioner No. 1 continues to be the partner of the firm M/s. V. H. Patel and Co., the learned Arbitrator was obliged to consider the prayer for dissolution of the firm made by the petitioner No. 1. The learned counsel, relying on a judgment of the Supreme Court in the case of Indian Oil Corporation Ltd. v. Amritsar Gas Service ( (1991) 1 SCC 533 = 1991 (1) Arb. LR 97 (SC)), submitted that the Supreme Court in that case where all disputes between the parties in the suit were referred to the Arbitrator, held that a counter claim made in the written statement filed before the Arbitrator has to be considered by the Arbitrator. According to the learned counsel, though in the plain filed by the petitioners, there was no prayer for dissolution of the firm, it was possible for the petitioner No. 1 to claim that relief in the civil suit and as the civil suits were withdrawn pursuant to the agreement reached before the Supreme Court, that prayer was made by the petitioner No. 1 before the learned Arbitrator as all the disputes between the parties in the suits filed by the parties were referred to the learned Arbitrator. In view of the law laid down by the Supreme Court in its judgment in Indian Oil Corporation's case referred to above, it was obligatory on the part of the Arbitrator to consider that question. The learned counsel appearing for the respondents, on the other hand, relying on a judgment of the Supreme Court in the case of Orissa Mining Corpn., Ltd. v. Premnath Vishwanath Rawalley ( AIR 1977 SC 2014 ), submitted that the determination by the Arbitrator is restricted only to the reference made to the Arbitrator and therefore, unless the question of dissolution of the firm is specifically referred to the Arbitrator, the Arbitrator had no jurisdiction to entertain that prayer and therefore, in the submission of the learned counsel, the Arbitrator has rightly declined to consider that question on the ground that he has no jurisdiction to consider that question. Now, if in the light of these rival submissions, the questions that were referred to the Arbitrator by the Supreme Court are considered, it is clear that the parties had referred their disputes relating to the rights and obligations under the agreement dated 3rd July, 1987 and retirement deed dated 1st August, 1987 the question of determination of the rights of the respondent No. 1 as a partner of the petitioner firm as per the pleadings of the parties in the two suits was also referred. The learned Arbitrator found that the petitioner No. 1 continues to be the partner of the firm and as a partner of the firm, it was his right to claim dissolution of the firm and therefore, in my opinion, the question of dissolution of the firm was very much part of reference that was made to the learned Arbitrator. It is further to be seen/ that insofar as the judgment of the Supreme Court in Indian Oil Corporation Ltd. (supra), referred to above is concerned, perusal of paragraph 5 of that judgment shows that in that case, the disputes between the parties, the disputes being those mentioned in suit No. 376 of 1983 pending before the Court of the Senior Subordinate Judge, Amritsar were referred to the Arbitrator. The Arbitrator in that case declined to consider the counter claim made in the written statement by the defendants on the ground that it was not part of reference. The Supreme Court in this connection observed thus: "The appellant's grievance regarding non-consideration of its counter claim for the reason given in the award does appear to have some merit. In view of the fact that reference to Arbitrator was made by this Court in an appeal arising out of refusal to stay the suit under section 34 of the Arbitration Act and the reference was made of all disputes between the parties in the suit, the occasion to make a counter claim in the written statement could arise only after the order of reference. The pleadings of the parties were filed before the Arbitrator, and the reference covered all disputes between the parties in the suit. Accordingly, the counter claim could not be made at any earlier stage. The pleadings of the parties were filed before the Arbitrator, and the reference covered all disputes between the parties in the suit. Accordingly, the counter claim could not be made at any earlier stage. Refusal to consider the counter claim for the only reason given in the award does therefore, disclose an error of law apparent on the face of the award." It is thus dear that the Supreme Court has held that the Arbitrator was obliged to consider the counter claim which was made before the Arbitrator as the defendants had no opportunity to make that claim earlier. It is clear that the Supreme Court has held that the Arbitrator had to consider the counter claim because the counter claim relates to the dispute raised in the suit and the disputes in the suit were referred to the Arbitrator. In the present case, the petitioner No. 1 had filed the suit as a partner of the firm M/s. V. H. Patel and Co. for enforcing some of his rights as a partner, seeking dissolution of the firm is a right of a partner. Had the suit remained pending, it was possible for him to amend his plaint seeking an order for dissolution of the firm, the cause of action for seeking such relief would be the same on which has claim in the suit was based. Cause of action for a counter claim can be different than the cause of action for the suit. Therefore, if a counter claim which may be based on a different cause of action can be considered by the Arbitrator, in my opinion, it would not be possible to hold that a claim which is based on the same cause of action on which the claim in the suit is based, cannot be considered. It appears that according to the judgment of the Supreme Court referred to above, an Arbitrator has jurisdiction to consider all questions raised before him by the parties which relate to the dispute referred to the Arbitrator. Driving a party to a separate litigation for the relief which relates to the dispute referred to the Arbitrator would not be proper and valid. Driving a party to a separate litigation for the relief which relates to the dispute referred to the Arbitrator would not be proper and valid. In my opinion therefore, in the present case also, it was open to the petitioner No. 1 to claim a decree for dissolution of the firm in exercise of his rights as a partner of the firm which he could have made by amending his pleadings in the civil suit which was capable of being made and therefore, it was within the jurisdiction of the Arbitrator to consider that question. It is further to be seen here that the parties are from the same family, there were disputes between them, they tried to resolve the disputes by entering into an arrangement which ultimately failed. It is therefore obvious that the relationship between the parties is strained. The Arbitrator was appointed to resolve the disputes between the parties. In my opinion therefore, the Arbitrator should have considered the question of dissolution of the firm not only because it was within his jurisdiction but also because it was one of the ways of resolving the disputes between the parties. I thus find that the reason given by the learned Arbitrator for not considering the prayer for dissolution of the firm viz., he has no jurisdiction, is erroneous, discloses error of law apparent on the face of the award and therefore, the award is liable to be set aside and the proceedings are liable to be remitted back to the learned Arbitrator for consideration and decision on that question. 10. It is submitted by the learned counsel for the respondents that now, since the finding on issue No. 17 is set aside by me, the award passed by the learned Arbitrator on other points should be confirmed. 10. It is submitted by the learned counsel for the respondents that now, since the finding on issue No. 17 is set aside by me, the award passed by the learned Arbitrator on other points should be confirmed. It is however to be seen here that immediately after the award was passed on 25th January, 1999, according to the averments in arbitration Petition No. 188 of 1999 filed by the respondents, the remaining five partners of the firm, excluding the petitioner No. 1 by deed of assignment dated 18th February, 1999, have assigned the said three registered trade marks with their goodwill, for valuable consideration in favour of one M/s. H. H. Patel Tobacco Pvt. Ltd., Chalisgaon and therefore, according to the respondents, from that date, the said company viz., M/s. H. H. Patel Tabacco Pvt. Ltd., Chalisgaon is the owner of the said trade marks. It is further to be seen here that in the affidavit in reply filed by the petitioner No. 1 in arbitration petition No. 188 of 1999, they have stated that the Company to which the trade marks are assigned is floated by the remaining partners of the firm in dispute viz., M/s. V. H. Patel and Co. as promoters and rest of the Directors and Shareholders of the company are relatives of the partners. According to the petitioner No. 1, this transaction was brought about to defeat the interest of the petitioner No. 1. According to the petitioner No. 1, the entire transaction is a fraud played by the respondents to deny the petitioner No. 1 benefits of the award. It is pertinent to note here that by the award, the learned Arbitrator had directed that the petitioner No. 1 has not retired as partner of the firm, however, this relief, according to the award granted in favour of the petitioner No. 1 was to operate only on his paying an amount of Rs. 5,17,927.17 to the firm. There was no time fixed for payment of this amount. According to the respondents, as the petitioner No. 1 did not pay the above referred amount immediately after the award was made on 25th January, 1999, assuming that the petitioner No. 1 is not interested in being partner of the firm, they assigned the trade marks on 18th February, 1999. There was no time fixed for payment of this amount. According to the respondents, as the petitioner No. 1 did not pay the above referred amount immediately after the award was made on 25th January, 1999, assuming that the petitioner No. 1 is not interested in being partner of the firm, they assigned the trade marks on 18th February, 1999. After having considered the arguments advanced by both the sides and the documents tendered on record, in my opinion, the assignment of trade marks on 18th February, 1999 to the Private Limited Company is nothing short of fraud played by the remaining partners of the firm to defraud the petitioner No. 1 of the fruits of the award. The respondents have accepted the entire award, thus they accepted the position that the petitioner No. 1 was entitled to continue to be the partner of the firm. The Arbitrator had not fixed any time limit for making the payment, therefore the petitioner No. 1 had to make the payment within a reasonable time. The statute gives him three months' time to consider whether to accept the award or to challenge the same. In these circumstances therefore, in my opinion, the respondents were not at all justified in assigning the trade marks on which the entire business of the firm is based, without even allowing a month to go-bye. In case the respondents were in a hurry to assign the trade marks, they could have enquired from the petitioner No. 1 whether he intends to pay the money as per the award or not. The respondents did no such attempt and rushed to assign the trade marks. This discloses main fide intention of the respondents. The assignment is also not to any outsider. The trade marks have been assigned to a Private Limited Company which has two partners of the firm as promoters. The assignment of the trade marks by the respondents, in my opinion, therefore is nothing but a crude attempt on the part of the respondents to deny to the petitioner No. 1 the benefits of the award. It is to be noted here that the learned Arbitrator has observed in his award that while the proceedings were pending before the learned Arbitrator, the parties were operating the deed of retirement dated 1st August, 1987. It is to be noted here that the learned Arbitrator has observed in his award that while the proceedings were pending before the learned Arbitrator, the parties were operating the deed of retirement dated 1st August, 1987. The result was that the trade marks were being used by the petitioner No. 1 and the firm. M/s. H. H. Patel Tobacco Pvt. Ltd. in certain areas and the trade marks were being used by the firm M/s. V. H. Patel and Co., in certain areas. As the proceedings have been remanded back to the learned Arbitrator for considering the question whether the petitioner No. 1 is entitled to seek dissolution of the partnership, in my opinion, it will be in the interest of justice as also equitable to continue the arrangement that was in existence while the proceedings before the learned Arbitrator were pending and that arrangement has operated between the partners since 1987. To make any other direction, in my opinion, would defeat the ends of justice. In my opinion, it will be highly un equitable to force the petitioner No. 1 to go as a partner of the firm which, at present, does not own the trade marks on the basis of which it was doing business. Therefore, while remitting the proceedings back to the learned Arbitrator, it is directed that till the learned Arbitrator makes a fresh award in the light of the observations made above, the arrangement in relation to the business as was in existence while the proceedings were pending before the learned Arbitrator shall continue to operate and the same arrangement shall also continue to operate for a period of four weeks after the award is made. It will mean that the alleged assignment of trade marks by the remaining partners to the Private Limited Company shall have no effect and the Private Limited Company to whom the trade marks have been assigned, shall not be entitled to do the business on the basis of those trade marks. 11. In the result therefore, the present petition succeeds, the finding recorded by the learned Arbitrator on issue No. 17 is set aside. Issue No. 17 is remitted back to the learned Arbitrator for de novo consideration and decision in accordance with law. At this stage, the learned counsel appearing for the Private Limited Company prays for stay of this order. In the result therefore, the present petition succeeds, the finding recorded by the learned Arbitrator on issue No. 17 is set aside. Issue No. 17 is remitted back to the learned Arbitrator for de novo consideration and decision in accordance with law. At this stage, the learned counsel appearing for the Private Limited Company prays for stay of this order. In view of the fact that I have held that the arrangement brought about in favour of the Private Limited Company is a fraud played by the remaining partners of the firm M/s. V. H. Patel and Co. and because I have found that the Private Limited Company is not the creation of the remaining partners of the firm but it consists of either remaining partners of M/s. V. H. Patel and Co. and their relatives, in my opinion, it will not be in the interest of justice to stay this order. The request is therefore rejected. Certified copy expedited. Petition allowed.