JUDGMENT : Mr. H.K. Rathod, J. Heard learned advocate Mr. RF Totla with learned advocate Mr. N.C. Thakkar on behalf of appellant and learned advocate Mr. KV Shelat appearing for respondents. In this group of appeals, Vipinchandra Pranlal Shah join as a party respondent no. 4 as observer by order dated 26.11.2008 and learned advocate Mr. Mehul S. Shah appearing for respondent no. 4 observer during pendency of present proceeding. 2. The observer has filed his affidavit before this Court in FA 4677 of 2008 to FA no. 4681 of 2008 dated 16.12.2008. Shri Vipinchandra Pranlal Shah, aged 65 years, Income Tax Practitioner makes this affidavit. According to him, he has been join as party respondent no. 4 in present proceeding and as per order of District Court, Nadiad present respondents are appointed as interim receivers and on inquiry, it appears that they were served with receivership letter (Receiver Patra) on 4.8.2008. 3. According to observer, he was not informed by District Court, Nadiad in writing that he was appointed as observer as per interim order dated 30.6.2008. However, according to him, he know both appellants and respondents as he had an occasion for years to represent them before Income Tax Department for filing returns. His name was suggested as Arbitrator before Trial Court, Nadiad, but he had shown his inability for acting as an Arbitrator, due to age and health. 4. According to him, respondent who was appointed as interim receivers has apprised him of an order passed by District Court, Nadiad. In original order name shown as Bipinchandra Pranlal Shah as Chartered Accountant but in fact his name is Vipinchandra Pranlal Shah, an Income Tax Practitioner. According to him, he is likely to under-go operation for both eyes and he may request Court for appointing another observer. He had asked for details for audited accounts of firms are concerned for year ended on 31.3.2008. This audited accounts are made by Auditor M/s. Mistry & Associates, Ahmedabad and returns in that regard were filed on September, 2008 through E filing. 5. As regards allegations alleged to have been made by appellants, according to him that after issuance of receiver patra, there are no allegations which have been communicated to him, therefore, it is not possible to dwell upon same. 5. As regards allegations alleged to have been made by appellants, according to him that after issuance of receiver patra, there are no allegations which have been communicated to him, therefore, it is not possible to dwell upon same. According to him, parties need to take a constructive approach to resolve their disputes, so that running business and prestige earned by their father and predecessor are not subject to disrepute or loss of business and parties should make endeavour to divide all properties as per their shares by appointing a Government approved valuer, who will value movable and immovable properties, which render a firm base for further resolving their disputes. Meantime, due to non furnishing of papers, orders by Court as well as documents as alleged by appellant, due to peculiar circumstances of his family and due to his health, he is not able to continue work as observer. 6. According to him, in appeal no. 4677 of 2008 filed before this Court that appellant has also not any faith in observer to work as an observer. Therefore, looking to circumstances as narrated in affidavit by observer, he requested to this Court to take appropriate action or decision as deemed to be fit if since he is likely to under go operation for both eyes and he also tendered his unconditional apology. 7. The aforesaid affidavit as referred above given a clear picture between appellants and respondents, those who are real brothers having doubt upon each other and loss faith between each other which ultimately damaged unity of family business and reputation of partnership firm. 8. In this group of appeals, all learned advocates appearing for respective parties including this Court also made sincere efforts to see that dispute between real brothers may be resolved happily, for that, papers were sent to mediation center of this Court. But ultimately, result is failure because of adamant approach between real brothers those who are interested only in legal fight and to receive decision from this Court. Therefore, this group of appeals along with civil applications heard by this Court on 10.7.2009. 9. Initially, learned advocate Mr. Totla had argued on behalf of appellant which has been replied by learned advocate Mr. K.V. Shelat on behalf of respondents. Thereafter, no rejoinder arguments are made by learned advocate Mr. Totla on behalf of appellant. Therefore, this group of appeals along with civil applications heard by this Court on 10.7.2009. 9. Initially, learned advocate Mr. Totla had argued on behalf of appellant which has been replied by learned advocate Mr. K.V. Shelat on behalf of respondents. Thereafter, no rejoinder arguments are made by learned advocate Mr. Totla on behalf of appellant. This facts have been stated by this Court in order dated 10.7.2009. 10. In this group of appeals, appellant has challenged interim order of 2008 vide Exh. 5 Ad interim injunction and counter injunction application Exh. 36 dated 30.6.2008. The District Court, Nadiad has allowed an application of applicant and respondents are restrained from using premises of partnership firm for making their individual or family business either for stuffing of goods or packing or manufacturing or selling at premises of partnership firm. In wider interest of business of partnership firm as well as in interest of partners of firm at large certain direction has been issued in terms of interim measures till remain continue upto final disposal of application. 11. Before District Court, appellant has filed application under section 9 of Arbitration and Conciliation Act 1996 and same is pending for consideration of District Court, Nadiad. During pendency of section 9 application before District Court, Nadiad, present appellant has filed interim application having certain allegations against respondents and request to appoint receiver for selling existing stock of partnership firm, otherwise, it will be damaged and heavy loss will be caused to firm. 12. In alternate, Court can direct parties to maintain status quo with directions to any competent Receiver/Commissioner to take an inventory of stock available as on date because when petitioner approached to Civil Court, at that time, Civil Court directed for inventory and accordingly inventory was taken by Commissioner and submitted to Court. Therefore, respondents in spite of orders from Court in violation of it carried out business, therefore, it is necessary to have record that how much goods they have sold and it is in interest of firm and petitioners. Therefore, respondents in spite of orders from Court in violation of it carried out business, therefore, it is necessary to have record that how much goods they have sold and it is in interest of firm and petitioners. Following prayer made by appellant in civil application in para 9(A)(B)(C) which are quoted as under: "(A) An application may kindly be granted and Respondents be restrained by an ex parte orders that they should not carry the business of partnership firm till the decision of the main application and they be further restrained from using the premises of the partnership firm for their own use and they should not operate the Bank Accounts. (B) That the Receiver be appointed with direction to take the stock of as on date and sell it and deposit the money in Bank Account. (C)Any other suitable relief that Hon'ble Court may deems fit be granted and oblige." 13. The present application is filed by appellant vide Exh. 5 before District Court, Nadiad in Civil Misc Application no. 62 of 2008. Against which, opponents have filed another application Exh. 36 giving details about replying allegations made by appellants and prayer made in 7(A) by respondent that application filed by appellant under section 9 is not finally decided by District Court, Nadiad. The appellants are restrained respondents for continuing business of partnership firm as per partnership deed and agreement and also account of bank which has been ceased may be re-opened just to maintain prestige and good will of partnership firm. According to respondents, they are prepared to do business of partnership firm by cheque and demand draft and whatever accounts of partnership firm will be produced before District Court each month. This counter application is filed vide Exh. 36 by respondents on 19/5/2008. 14. The District Court, Nadiad has passed an order below Exh. 36 that both sides have orally agreed to decide counter injunction application along with Exh 5. Therefore, in such circumstances, application filed by respondent is ordered to be heard and decided along with Exh 5. However, appellant is given opportunity to file any reply or objection before concluded hearing of Exh 5. Thereafter, matter was heard by District Court Nadiad during pendency of application filed by appellant u/s 9 of Arbitration and Conciliation Act, 1996. 15. The section 9 of Arbitration and Conciliation Act, 1996 is quoted as under: "9. However, appellant is given opportunity to file any reply or objection before concluded hearing of Exh 5. Thereafter, matter was heard by District Court Nadiad during pendency of application filed by appellant u/s 9 of Arbitration and Conciliation Act, 1996. 15. The section 9 of Arbitration and Conciliation Act, 1996 is quoted as under: "9. Interim measures, etc. by Court – a party may, before or during arbitral proceedings or at any time, after the making of the arbitral award but before it is enforced in accordance with section, 36 apply to Court - (i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely :- (a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. COMMENTS Interim protection: A party or a person is entitled to interim protection if action of the other party is either in breach of the terms of the agreement or militates against equity, fair play or natural justice, otherwise not; Baby Aryu v. Delhi Vidyut Board, AIR 2002 Del 50 . Pendency of any arbitral proceedings is not a pre-condition for an exercise of power by the Court. Pendency of any arbitral proceedings is not a pre-condition for exercise of power by Court. Pendency of any arbitral proceedings is not a pre-condition for an exercise of power by the Court. Pendency of any arbitral proceedings is not a pre-condition for exercise of power by Court. The Court may grant interim relief before or during arbitral proceedings or at any time after making of the arbitral award but before it is enforced; Globe Cogeneration Power Ltd v. Shri Hiranyakeshi Sahkari Sakkere Karkhane Niyamit, AIR 2005 Kant 94. Scope : Section 9 of the Arbitration and Conciliation Act, 1996 only deals with the interim measure by the Court. Obviously it is not within the scope of this section to inquire into the claim and the counter claim made by both the parties in regard to the custody of the articles beyond what has been admitted by the respondent; Narain Sahai Aggarwal v. Santosh Rani, 1997 (2) Arb LR 322." 16. The District Court, Nadiad has considered Interim application filed by appellant and respondents Exh. 5 and 36 in Civil Misc. Application no. 62/08. The appellants and respondents are members of one family running their business in partnership firm and in name and style of (1). M/s. M.K. Industries, (2). M/s. India Spices, (3) M/s. Indica Exporters, (4) A. Dharamdas & Company and (5) M/s. Anupam Marketing. The business of firms are depending on each other, in M/s. K.M. Industries used to manufacture and packing in M/s. K.M. Industries at 46, G.I.D.C., Nadiad, used to be sold to sister concern M/s. Anupam Marketing used to sell goods to various customers. The firm namely M/s India Spices, C-17 and C-3-11, G.I.D.C., Nadiad also manufacturing spices and goods so manufactured at India Spices is to be exported through another partnership firm namely M/s. Indica Exporters. Moreover, another firm M/s. A. Dharamdas & Company used to sell grocery, goods including spices. Thus in all firms various partners as per partnership deed and agreement carrying out business of firm and its branch office is at I-25, Madhupur Market, Shahi Baug, Ahmedabad. 17. According to appellant, respondents in breach of terms and condition of agreement of partnership deed started playing fraud with applicant by diverting business of partnership firm in their own proprietary firm known as "Ashish Traders" and started cheating with applicant thereby getting wrongful gain and caused loss to applicant by diverting goods, property and money of firm to their own properties firm. Therefore, urgent interim measures for protecting interest of applicant required to be obtained by restraining respondents from using premises of partnership firm. M/s. A. Dharamdas & Co. out side at new madhupur Ahmedabad and also to restrain respondent from making business of partnership firm till decision arrived from arbitration proceedings. 18. In support of averment made in application, appellant has produced various documents along with list exhibited 3 and 34 and made submission that goods and properties of partnership firm and money of firm has been siphoned away by respondents, so in such peculiar circumstances, as per documents appellant have got prima facie case. Therefore, ad interim injunction to be granted against respondent not to use premises of partnership firm M/s. Anupam Marketing, Anupam House, I–25, madhupur Market, Shahi Baug Road, Ahmedabad for their own business and also seek order to appoint a Receiver under order 40 of Code of Civil Procedure. 19. Before District Court, Nadiad appellant has relied upon certain decision of Apex Court as referred in para 6 of order passed by District Court Nadiad, which is quoted as under: "6. He relied upon the case of – (1) Fountain Head Developers and Ors v. Maria Arcangela Sequeira & Ors, reported in 2007 (3) B.C.R. Page 393, (2) Firm Ashok Traders and Ors v. Gurumukhdas Saluja, reported in A.I.R. 2004 S.C. page 1433; (3) Smt. Rasilaben Kantilal Kansara v. Amratlal Babubhai Kocho & Ors reported in 1988 Mah.L.R. Page 387; (4) Sheonarain Jaiswal & Ors v. Shree Kripa Shankar Jaiswal & Ors reported in A.I.R. 1972 Patna Page–75 (V 59 C 25), (5) Nihalchand L. Jai Narain & ors v. Ram Niwas Munna Lal & Ors reported in A.I.R. 1968 Punjab & Haryana Page 523, (6) Kasturi Bai & Ors v. Angur Chaudhary reported in 2001 (2) G.C.D. 60 (NOSC), and (7) M/s Sundaram Finance Ltd v. N.E.P.C. India Ltd. reported in A.I.R. 1999 S.C. Page 565." 20. In response to notice issued by District Court, Nadiad, written statement was filed by respondent Exh. 22 along with their affidavit Exh. 25 and raised contention that respondents are not acting against interest of partnership firm and against terms and conditions of agreement deed made between parties. In response to notice issued by District Court, Nadiad, written statement was filed by respondent Exh. 22 along with their affidavit Exh. 25 and raised contention that respondents are not acting against interest of partnership firm and against terms and conditions of agreement deed made between parties. The allegation has been denied by respondents that business of partnership firm having been transferred converted into their private individual firm in name and style of M/s. Ashish Traders – proprietary business of opponent no. 2. It is also denied by respondent before District Court, Nadiad that income tax return of firm filed by Mr. Dharamdas on basis of false and frivolous account submitted in income tax office. The appellant tried to cause damage to reputation of firm in market by ceasing bank account of partnership firm. But to maintain goodwill of business of firm they are running business as per terms and conditions of partnership deed and acted in interest of firm but some how misunderstanding has been caused to appellant, so that present application with a view to damage reputation and caused economic loss to firm has been filed. 21. According to respondents, no prima facie case has been made out in favour of appellant and no balance of convenience is in his favour and if interim injunction is granted and order to appoint a receiver be passed, then in that case, business of firm which would required qualitative work by knowledgeable person would badly suffer which can not be compensated in terms of money. 22. According to respondents, they are running business of M/s. Anupam Marketing in which special skill and expertization in process, grinding, packing and stuffing for chilly powder, turmeric powder and garlic powder required as per choice of customer. So that overall, handling and preserving of quality of business of product is required to be maintained in hands of respondents. According to respondents by giving application in Bank, operation of Bank account ceased, as a result, over all transaction of firm has been ceased, in such peculiar circumstances more direction required to be given to applicant not to disturb and restrain respondents in smooth running of partnership business and operating day to day bank account. 23. The respondents relied upon certain decision as referred in para 10 of order passed by District Court, Nadiad in para 10 which are quoted as under: "10. 23. The respondents relied upon certain decision as referred in para 10 of order passed by District Court, Nadiad in para 10 which are quoted as under: "10. In support of respondents' case relied on a case of (1) Brig Swai Bhavani Singh v. Indian Hotels Co. Ltd & Ors, reported in (1997) 1 SCC Page no. 260; (2) Kalpana Kothari (Smt) v. Sudha Yadav (smt) and Ors. reported in (2002) 1 SCC Page 203 (3) Firm Ashok Traders & Anr v. Gurumukhdas Saluja & Ors reported in (2004) 3 SCC Page 155; (4) Adhunik Steels Ltd v. Orissa Managanese & Minerals (P) Ltd. reported in (2007) 7 SCC Page 125 and prayed for dismissal of an application Exh. 5 and request to allow the counter injunction application Exh. 36." 24. This Court is referring aforesaid fact because in group of appeals, filed by appellant challenging interim order passed by District Court, Nadiad vide Exh. 5 and Exh. 36 dated 30-6-2008, which has been examined by this Court while deciding group of appeals as referred above along with civil applications. 25. On the basis of aforesaid facts means pleadings of appellant and respondents, District Court has framed issue in para 11. It is necessary to note that District Court Nadiad has come to conclusion that appellant proved prima facie case against respondents in affirmative. Whether respondents prove that they have prima facie case against appellant, where in held Negative. Whether balance of convenience is in favour of either appellant or respondents ? where it is held that balance of convenience is in favour of appellant. Whether it is necessary to appoint receiver, wherein it is held as per final order. Whether parties prove that injunction is granted or refused then who will either appellant or respondents are suffering irreparable loss which can not be compensated in terms of money, finding is that appellant will suffer irreparable loss. 26. The District Court, Nadiad has considered submissions made by both learned advocates appearing for respective parties and also considering various decisions cited by both parties and also considered section 9 of Arbitration and Conciliation Act, 1996 and decisions cited by both parties have been taken into consideration. Thereafter, considering Apex Court decisions, which have been relied by respondent in case of Firm Ashok Traders and Ors v. Gurumukhdas Saluja & Ors, reported in 2004 (3) SCC 155 . Thereafter, considering Apex Court decisions, which have been relied by respondent in case of Firm Ashok Traders and Ors v. Gurumukhdas Saluja & Ors, reported in 2004 (3) SCC 155 . This decision has been relied by both parties, appellant and respondent as referred in para 25 of order passed by District Court, which is quoted as under: "25. In support of his submission he relied on a case of Firm Ashok Traders & Anr. v. Gurumukhdas Saluja & Ors, reported in (2004) 3 S.C.C. Page – 155. It is pertinent to note that the Ld. Advocate appearing on behalf of the applicant also relied on the same judgment, wherein it was held at para 15 and 16 that: 15. The most basic principle governing the discretion of the Court to appointing a receiver is whether it is "just and convenient" to do so. A few factors are of relevant which we proceed to record dispensing with the need of delving into any detailed discussion. On the own showing of Group A they have 20% share in the partnership business and Group B has 18% share. The stand taken by Group "C", which according to Group 'A' holds, 62% share was not known before the High Court, and therefore, so far the High Court is concerned, the tussle was between the holders of 20% interest (Group A) and holders of 18% interest (Group B). In this appeal, Group C is represented and has vocally supported Group B standing by its side. Before us it is a case of holders of 20% interest claiming against the holders of 80% interest. 16. The finding recorded by the High Court is that it was Group B which was running business up to the date of passing of the order by it and was found entitled to continue the same up to 31.12.2003, meaning thereby, for nine months out of the total twelve month period for which the business is to run, it is Group 'B' which has been running the business. Excepting bald and general allegations of mismanagement and siphoning off of funds, nothing concrete has been alleged much less demonstrated to give real colour to the averments made. The High has through it proper to appoint Group 'A' as captain of the ship, which is a running business, to sail for the remaining period of three months. Excepting bald and general allegations of mismanagement and siphoning off of funds, nothing concrete has been alleged much less demonstrated to give real colour to the averments made. The High has through it proper to appoint Group 'A' as captain of the ship, which is a running business, to sail for the remaining period of three months. We fail to understand the logic behind such a change. It is a serious matter to appoint a receiver on a running business. The High Court in spite of having formed on opinion in favour of directing the appointment of receiver has rightly observed that retail liquor trade is an intricate and tricky trade and hence can not be entrusted to a third party. If that be so, we fail to appreciate the justification behind turning out the persons in actual management of business and passing on the reins in the hands of those who were not holding the same for nine months out of the twelve. We do not say that such a course has any prohibition in law om being followed. But we do not think a case of oppression of minority by majority – the sense in which the terms is understood in law has been made out on the material available in the present case. A better course would have been to allow the conduct of the business continuing in the hands of persons who were doing so till now but at the same time issuing such directions and/or devising such arrangement as would protect and take care of the interest of those who are not actually running the business and that is what we propose to do." 27. While considering aforesaid decision of Apex Court in case of "Firm Ashok Traders", ratio laid down that if there is a running business and business is intricate and tricky and required skill for expertization, then business can not be entrusted to a third party. 28. This decision has been distinguished by appellant as discussed in para 27 of order passed by District Court, Nadiad. 28. This decision has been distinguished by appellant as discussed in para 27 of order passed by District Court, Nadiad. According to appellant, in aforesaid decision of Apex Court in case of Firm Ashok Traders, excepting bald and general allegations of mismanagement and siphoning off of fund, nothing create has been alleged much less demonstrated to give real colour to averment made and contended that in this case, there is concrete documentary evidence on record would leads towards mismanagement and siphoning of funds of firm to individual partnership firm. Therefore, according to appellants, ratio laid down in case of Firm Ashok Traders is not applicable and management of firm is not to be handed over in hands of partners but really making mismanagement and cheating with remaining partners. 29. Against that appellants have relied upon one decision in case of Smt. Rashilaben Kantilal Kansara v. Amratlal Babubhai Kocho & Ors reported in 1988 Mah. L.R. Page 387. According to ratio of aforesaid decision, undoubtedly true that Court would not appoint a receiver in every disputes between parties, but Court would not certainly refrain from exercising jurisdiction when majority partners are trying to defeats claim of minority partners. 30. As against that respondent submitted that they are continuing in running business of firm and act as custodian of firm in profitable condition, so that 3rd party receiver is not required to be appointed and relied upon decision in case of Brig. Sawai Bhavani Singh v. Indian Hotels Co. Ltd & Ors, reported in (1997) 1 SCC Page no. 260. The respondents have also relied upon decision in case of Kalpana Kothari (Smt) v. Sudha Yadav (Smt) and Ors reported in (2001) 1 SCC Page 203, relevant para 10 of aforesaid decision in para 30 of order passed by District Court is quoted as under: "So far as the need for or desirability of appointing a receiver and granting of injunction as prayed for, is concerned, the High Court does not seem to have taken in to consideration the over all necessity of balancing the interest of both the parties. The serious difficulties and loss to the firm and partners may be put to by fizzing the day to day business activities of the firm and the adverse impacts on the credibility and reputation of the firm as a whole do not seen to have engaged the attention of the High Court in passing the order under challenged. The fizzibility or otherwise of appointing party receiver and allowing them to carry on the day to day activities of the business subject to strict and effective control and accountability to the Court of releasing of the business does not seem to have been considered at all before giving out for the appointment a third party receiver and prohibiting in sells the completely as long as the arbitration clause exist having recourse to the Civil Court for adjudication of disputes envisaged to be resolved through arbitral proceedings or keeping in order of the nature from the Civil Court for appointment of receiver or prohibitory order without evincing any intention to have recourse or arbitration in terms of the agreement may not arise." 31. It is necessary to note that arbitration proceeding as per request letter made to Mr. Vipinchandra Pranlal Shah and Mr. Kumar Meghraj Tahelyani as arbitrator would indicate that arbitral proceeding is intended in that case, but it is on premature stage. According to appellant, intention of partners is not to dissolve partnership firm or partition of assets. Looking to whole documents submitted by both parties, factory data would reveals that proprietor of Ashish Traders is son of respondent no. 2 Mr. Dharamdas. In such situation, if referred documents mark at 26/8 produced before District Court Nadiad so called agreement made between parties would clearly emphasise that no partner shall use partnership premises for his individual or family business. This agreement has been made where stamps was purchased on 10-3-2003 while so called agreement has been made between parties on 5-5-2006. However, looking to specific conditions made in that documents, individual business can not be run in premises of partnership firm. Therefore, District Court, Nadiad has considered that it is required to be restrained respondents to run his business either as a stuffing of goods or packing or manufacturing or selling at premises of partnership firm M/s. Anupam Marketing or Dharamdas and Company. Therefore, District Court, Nadiad has considered that it is required to be restrained respondents to run his business either as a stuffing of goods or packing or manufacturing or selling at premises of partnership firm M/s. Anupam Marketing or Dharamdas and Company. Therefore, respondents are restrained from using premises of partnership firm for making business for their individual firm namely M/s. Ashish Traders in that premises. 32. In respect to documents, which are on record before District Court, Nadiad more particular marks – 3/3, 3/4, 3/5, 3/6, 3/7 and 3/8 would reveals that money has been withdrawn from partnership firm in name of Dharamdas and as per explanation given by respondent said amount has been redeposited in Bank in credit of M/s. Anupam Marketing Firm. The explanation is that appellant has ceased bank account by giving application in Bank. So that they inclined to make transaction by individual account. However, interest of parties is required to be decided after final hearing of application. In such circumstances and considering evidence on record, partnership firm is running business which required special skill and expertization in process of grindings, packing stuffing chilly powder, turmeric powder and garlic powder required as per choice of customers and nature of business required skill and quality control and personal attendants for grinding, stuffing, packing etc. then in that case business unit is handed over to a third party as a receiver then in that case it would effect over all business of partnership firm and it would be caused loss to both parties. 33. The District Court, Nadiad has considered share of appellants and respondent as per partnership deed Exh. 3/1, according to district Court, Nadiad share of respondents is 67% in business and share of appellants is 33%. Therefore, District Court Nadiad has considered that respondents are in majority group and appellants are in minority group. Considering business in his nature of intricacy and tricky then in that case as per decision of Apex Court in case of Firm Ashok Traders, if majority group i.e. respondents who are in actual management and control of firm appoint as a receiver with certain direction which maintain balance of convenience in peculiar facts of case. 34. Considering business in his nature of intricacy and tricky then in that case as per decision of Apex Court in case of Firm Ashok Traders, if majority group i.e. respondents who are in actual management and control of firm appoint as a receiver with certain direction which maintain balance of convenience in peculiar facts of case. 34. In light of order passed by District Court, considering submissions made by both parties and considering documents which are on record as well as decisions cited by both parties, certain directions have been issued while appointing respondents as receiver of running business. 35. Learned advocate Mr. Totla raised almost same contention before this Court and pointed out to this Court that how money has been siphoned by opponents. 36. He submitted that District Court Nadiad has passed an order contrary to prayer made in interim application, Exh 5. He submitted that observer also appointed without any prayer made by appellant. He raised contention that under order 40 of C.P.C. how appointment is made of receiver in absence of prayer made by appellant. He also submitted that as per direction issued by District Judge, Nadiad no inventory is carried out for taking charge and business of M/s. Anupam Marketing is not in actual management of respondent which is factually incorrect and 67% share of respondents is also factually incorrect considering partnership deed which are on record. The direction no. 3 is not complied with by respondents which shows conduct of respondents creates doubt against respondents. 37. He emphasised vehemently that when appellant has produced all necessary documents being an office record of Court before District Court, Nadiad which also proved allegations made by appellant against respondents and suggested conduct of respondents which prima facie, if it is doubtful then in such circumstances, District Court should not have to appoint respondents as receiver but instead of that some 3rd party must have to be appointed. 38. He referred relevant pages from his compilation i.e. 8 to 14 and pointed out to this Court that how mismanagement and siphoning money of partnership firm has been made by respondents. The partnership firm business has been narrated in individual business as proprietor of Ashish Traders, where son of Dharamdas is handling proprietorship concerned Ashish Traders. He also submitted that customers of partnership firm has been utilised in Proprietor Ashish Traders for getting benefits out of partnership firm business. The partnership firm business has been narrated in individual business as proprietor of Ashish Traders, where son of Dharamdas is handling proprietorship concerned Ashish Traders. He also submitted that customers of partnership firm has been utilised in Proprietor Ashish Traders for getting benefits out of partnership firm business. 39. He submitted that page 20 of compilation letter of appellant addressed to Bank and also referred page 32 item no. 3 where Rs. 17,00,000/- from Anupam Marketing given to private proprietor not partnership firm. Page, 38 is cheque of Rs. 17,00,000/- mentioned at page 32 where signature of Dharamdas is there. Page 39 sole proprietor cheque issued in name of Anupam Marketing partnership firm after objection of appellant. Page 41 of compilation, cheque of Rs. 3,00,000/- and Rs. 2,50,000/- where signature of Shri Dharamdas is there. Page 63 and 64, certificate issued by Corporation being shop establishment in respect to proprietor Ashish Traders. 40. He referred partnership deed page 130, there are separate five firms. In short his submission is that respondents are not reliable persons and appellant has no faith upon respondents and their conducts are doubtful which has been proved by appellant after producing all relevant records before District Court. The respondents are using partnership firm business for getting personal benefits in name of proprietor Ashish Tradors being private – personal business of son of Dharamdas. He also submitted that respondents are not in majority as considered by District Court, Nadiad and looking to partnership deed itself, appellant are in majority shares which has been ignored by District Court Nadiad, even though, respondents are appointed as receiver by District Court, Nadiad. 41. He referred compilation which has been given to this Court. Before District Court, Nadiad, a separate civil Misc. application filed by appellant against respondents under section 9 of Arbitration and Conciliation Act on 2-5-2008. In this application, specific averment made by appellant against respondent and share of each partnership firm has been also placed on record by learned advocate Mr. Totla on behalf of appellant. The partnership deed is also placed on record by appellant dated 28-7-2002 for K.M. Industries. In said partnership deed in case if any person left partnership firm or died, at that occasion, partnership firm will not dissolve but it should have to continue by remaining partners if they are remained continue as partners in partnership firm. The partnership deed is also placed on record by appellant dated 28-7-2002 for K.M. Industries. In said partnership deed in case if any person left partnership firm or died, at that occasion, partnership firm will not dissolve but it should have to continue by remaining partners if they are remained continue as partners in partnership firm. If any partner wants to retire from partnership firm, either such partner can be retired from partnership firm, it require two months notice to rest of partners by partner who wants to retire from partnership firm. The partnership firm will not dissolve without consent of majority partners. The bank account is to be ceased by decision of majority partners. He has also submitted that Shri Dharamdas has continued export business after dispute has been arise between parties. He just indicating that benefits of such export business is giving to help of Ashish Tradors Proprietor. One Vasudev proprietor is having similar type of business. 42. In short his overall submission and compilation produced before this Court pointed out from record that whatever allegation made by appellants against respondent based on record it was not merely bald allegation against respondents by appellants. According to him, there is a justification from record of allegation made by appellant against respondents. In each partnership firm, specific share has been determined between partners and he also pointed out relevant cheque Rs. 17,00,000/- transaction from compilation where name of Anumpan Marketing Sole Proprietor shown dated 17-9-2007. Before this Court, all partnership deed has been produced by appellant and submission is that respondents are not reliable persons not working in interest of partnership firm and getting personal benefits while handling business of partnership firm where appellants are out of business not able to have any control. 43. Therefore, order which has been passed by District Court, Nadiad appointed respondents as receiver is required to be quashed and set aside because District Court, Nadiad has committed gross error in passing such order when issues which has been framed by District Court have been given answer in favour of appellant. 44. Learned advocate Mr. Shelat also placed on record compilation before this Court, which was produced before District Court, Nadiad. He prepared one statement in respect of five partnership firm and also pointed out individual share of each partners in respect to each partnership firm. 44. Learned advocate Mr. Shelat also placed on record compilation before this Court, which was produced before District Court, Nadiad. He prepared one statement in respect of five partnership firm and also pointed out individual share of each partners in respect to each partnership firm. He also submitted that allegations which are made against respondents are incorrect but certain steps were taken by respondents in interest of partnership firm to see that business remain continued and prestige of business may not be adversely affect because respondents were compelled to take such steps on the ground that appellant has given an application to Bank to close bank accounts of partnership firm. Accordingly, bank has given answer immediately to partnership firm that unless writing is given by all partners Bank accounts will not be re-opened. Therefore, just to save prestige of partnership firm business on 9-9-2007, Rs. 14,00,000/- withdrawn by respondents from Anupam Marketing, which has been again redeposited by respondent in Anupam Marketing Proprietor firms on 17-9-2007. Meaning thereby he submitted that on 9-9-2007 Rs. 14,00,000/- has been withdrawn from Anupam Marketing which has been deposited on 17-9-2007 in Anupam Marketing Proprietor firm. Except this transaction of Rs. 14,00,000/- no other transaction has been made by respondents as personal capacity. As well as Rs. 3,00,000/- which has been withdrawn from Anupam Marketing has also been redeposited by respondents in Anupam Marketing Partnership Firm, which has been certified by Auditor. 45. Against Civil Misc. Application, affidavit in reply of respondents is filed, which is on record. He relied upon certain decision of Apex Court which is quoted as under: (1) Firm Ashok Traders and Anr v. Gurumukhdas Saluja and Ors reported in 2004 (3) SCC 155 ; (2) Kalpana Kothari v. Sudha Yadav reported in (2002) 1 SCC 203 . (3) Transmission Corpn. of A.P. Ltd v. Lanco Kondapalli Power (P) Ltd reported in (2006) 1 SCC 540 . (4) Metro Marins and Anr v. Bonus Watch Co. (P) Ltd and Ors reported in (2004) 7 SCC 478 . (5) Arvind Constructions Co. (P) Ltd v. Kalinga Mining Corporation and Ors reported in (2007) 6 SCC 798 . (6) Adhunik Steels Ltd v. Orissa Managanese and Minerals (P) Ltd reported in (2007) 7 SCC 125 . 46. Learned advocate Mr. (P) Ltd and Ors reported in (2004) 7 SCC 478 . (5) Arvind Constructions Co. (P) Ltd v. Kalinga Mining Corporation and Ors reported in (2007) 6 SCC 798 . (6) Adhunik Steels Ltd v. Orissa Managanese and Minerals (P) Ltd reported in (2007) 7 SCC 125 . 46. Learned advocate Mr. Shelat submitted on behalf of respondent that they are maintaining, managing and having administrative control w.e.f. 16-4-2007 because appellant has given application to Bank for closing account of partnership firm on 23-8-2007. Prior to that respondents are in effective managing affairs of partnership firm and managing record of Firms. 47. He emphasised that whatever allegations made by appellants against respondents, for that, respondents are having explanation based on record. The business of each partnership firm handling by respondents as a receiver from date of order passed by District Court on 30-6-2008. Before that respondents are in actual control and management of each partnership firm w.e.f. 16-4-2007 onward. So prior to order passed by District Court, Nadiad for more than one year, respondents are in actual control and managing business of partnership firm effectively and in respect to two or three allegations made against respondents, which has been answered by respondents in detail with record, which are produced on record before District Court, Nadiad. The private business being personal proprietor Ashish Traders, which is in name of son of Dharamdas is also permissible as per partnership deed. The immovable properties are in name of firm, which is worth of Rs. 8 to 10 Crore. The allegations, which ever made has been replied by respondents by filing documents supported with affidavit. In respect to five partnership firm, total amount lying in bank account comes to Rs. 95 Lacs as well as respondents are regularly deposited profit of all five partnership firm in bank and not a single pie has been withdrawn by respondents from any bank account of any partnership firm. They are maintaining regularly record of bank transaction, business transaction and income as well as expenses transaction which are on record which can be verified by any observer, who can be appointed by any Court. They are maintaining regularly record of bank transaction, business transaction and income as well as expenses transaction which are on record which can be verified by any observer, who can be appointed by any Court. They are prepared to give details to observer or any person who suggested by Court, that not a single pie has been misused by respondents and there is no mismanagement of partnership firm by respondents and they are regularly filing income tax return audited by Chartered Accountant. The respondents have not deal with any properties of partnership firm and this dispute has been arise because of elder brother Kumarbhai Meghrajbhai Tahelyani, who was initially partner in partnership firm make to retire in year 1998-99, thereafter, he and his family members continued in firms, now partnership deed came into existence and dispute with Kumarbhai is settled by remaining partners means by rest of brothers and he has also started same business as competitor against partnership firm. 48. He submitted that there is no good relation with Kumarbhai with other partners means brothers. The dispute started in 2007 between brothers and in August 2007, application was made by appellant before Bank to freeze bank accounts and started difficulties between brothers and partners of each partnership firm. Therefore, in short his submission is that except two or three incident as alleged by appellants against respondents, for that reply is given by respondents and from record itself, from August 2007 onward respondents are in actual effective control of partnership firm and maintaining accurately in interest of partnership firm and whatever profits are available, appellants are also getting share in profit according to terms and conditions of partnership deed. So appellants are not in disadvantage situation during pendency of application preferred by appellants before District Court, Nadiad under section 9 of Arbitration and Conciliation Act. 49. He emphasised that allegations in respect to Rs. 14,00,000/- and Rs. 3,00,000/- as referred above, there is no other allegation made against respondent by appellant and after having been appointed as receiver in pursuance to order passed by District Court, Nadiad dated 30-6-2008 not a single allegation has been made for subsequent period though more than nine months have passed against respondents by appellants. 14,00,000/- and Rs. 3,00,000/- as referred above, there is no other allegation made against respondent by appellant and after having been appointed as receiver in pursuance to order passed by District Court, Nadiad dated 30-6-2008 not a single allegation has been made for subsequent period though more than nine months have passed against respondents by appellants. Therefore, he submitted that District Court, Nadiad has rightly passed an order on 30-6-2008 which based on record and considering share of respondents in each partnership firm which are in majority and also considering actual control of respondents in respect to business of partnership firm and also having management in partnership firm, respondents are rightly appointed as receiver considering personal skill of managing business which require and also protect prestige and good will of partnership business. 50. So, according to him, it is equitable interim order passed by District Court, Nadiad which is in interest of entire business of partnership firm, which has been rightly maintained by respondents against which, there are no allegation made for subsequent period from date of order 30-6-2008 passed by District Court, Nadiad. 51. He gave one statement to this Court which giving clear picture of share of each partners in respect to each partnership firm and also giving picture about managing affairs of firm are in control of whom. This statement was shown to learned advocate Mr. Thakkar by this Court. He is not disputing statement prepared by learned advocate Mr. Shelat in respect to share of each partners in each partnership firm and also having managing affairs of firm in respect to each partnership firm. Therefore, this statement is quoted as under: Sr. No. Name of the Registered Partnership firm Name of Partners Share in Profit/loss Name of Managing Partners 1 M/s. Indica Spices 1. Dharmdas M. Tahelyani 2. Punamben V. Tahelyani 3. Vasudev M. Tahelyani 4. Shyamal M. Tahelyani 5. Rajeshbhai M. Tahelyani 20.00% 20% (A) 20.00% 20.00% 20% (B) Group (A) is having 60% of share Group (A) is managing the affairs of the firm. 2 M/s. Anupam Marketing 1. Dharmdas M. Tahelyani 2. Punamben V. Tahelyani 3. Rajeshbhai M. Tahelyani 30%(A) 40.00% 30% (B) Group (A) is having 70% of shares Group (A) is managing the affairs of the firm 3 M/s. A. Dharmdas & Co. 1. Dharmdas M. Tahelyani 2. Vasudev M. Tahelyani 3. Shyamlal M. Tahelyani 4. 2 M/s. Anupam Marketing 1. Dharmdas M. Tahelyani 2. Punamben V. Tahelyani 3. Rajeshbhai M. Tahelyani 30%(A) 40.00% 30% (B) Group (A) is having 70% of shares Group (A) is managing the affairs of the firm 3 M/s. A. Dharmdas & Co. 1. Dharmdas M. Tahelyani 2. Vasudev M. Tahelyani 3. Shyamlal M. Tahelyani 4. Rajubhai M. Tahelyani 20.00% 40% (A) 20.00% 20% (B) Group (A) is having 60% of shares Group (A) is managing the affairs of the firm 4 M/s. K.M. Industries 1. Dharmdas M. Tahelyani 2. Hemaben D. Tahelyani 3. Punamben V. Tahelyani 4. Rajeshbhai M. Tahelyani 5. Shyamlal M. Tahelyani 6. Lataben@Savitri S. Tahelyani 15.00% 15.00% 15% (A) 30.00% 10% (B) 15.00% Group (A) is having 45% of shares Group (A) is managing the affairs of the firm 5 M/s. Indica Exports 1. Dharmdas M. Tahelyani 2. Vasudev M. Tahelyani 3. Shyamlal M. Tahelyani 4. Rajesh M. Tahelyani 25.00% 25%(A) 25.00% 25% (B) Group (A) is having 50% of shares Group (A) is managing the affairs of the firm 52. In this statement (A) means respondents and (B) means appellants. 53. Learned advocate Mr. Totla appearing on behalf of appellant vehemently made grievance against personal business of Dharamdas in name of Ashish Traders and by way of that Dharamdash is getting personal gain from partnership firm. Shri Dharamdas being partner also have commercial transactions between partnership firm and Ashish Traders. He submitted that Ashish Traders is registered in Bombay Shop and Establishment Act in Ahmedabad Municipal Corporation as separate establishment and name of employer is Shri Dharamdas being proprietor, which according to him, suggest collision of partner Dharamdas to have personal gain from business of partnership firm. This registration is dated 24-10-2007 being commercial establishment. 54. Learned advocate Mr. Totla has placed on record means compilation. I have gone through compilation and in this compilation, he harping upon amount which was withdrawn by Dharamdas from Bank as Proprietor having a separate proprietor concerned Anupam Marketing and accordingly transactions have been shown to this Court, there is a mismanagement and misused by partners Dharamdas withdrawing Rs. 17,00,000/- on 17-9-2007 at page 39, and cheque of Rs. 1,05,000/- has been issued being sole proprietor of Anupam Marketing at page 40. There is also transaction of Rs. 2,50,000/- and Rs. 3,00,000/- on 27-9-2007. 17,00,000/- on 17-9-2007 at page 39, and cheque of Rs. 1,05,000/- has been issued being sole proprietor of Anupam Marketing at page 40. There is also transaction of Rs. 2,50,000/- and Rs. 3,00,000/- on 27-9-2007. In short his submission is that these transactions are suggested mismanagement and misused of position as partners getting personal gain from business of partnership firm. Therefore, according to him, conduct of respondents are not clear as doubtful and appointment as receiver is damaged to right of appellant. He submitted that according to terms and condition of partnership deed, partners can not having separate business. 55. He also relied upon decision in case of Smt. Sarbadundari Dassi v. Smt. Nandarani Dassi and Ors reported in AIR 1941 Calcutta 144, which are attached to compilation. While relying upon decision he submitted that if receiver appointed in suit for partition considering his own personal interests to exclusion of interests of parties, such receiver should be removed. Where attitude of a receiver appointed in a suit for partition is inconsistent with attitude of a receiver, i.e. where he is considering his own personal interests to exclusion of interest of parties whose representative he is and whose benefit should be concern, such receiver should be removed. 56. He also relied upon another decision of Calcutta High Court in case of Radha Kanta Pal v. Benode Behari Pal and Ors reported in AIR 1934 Calcutta 444, where joint family business, strangers having definite shares do not form joint family business and selection of receiver, partnership at will – plaintiff's title to share admitted, suit operating as dissolution, one party should not be appointed receiver without consent of other partners. The partners should not be appointed as receiver when prima facie case of suspects of dishonesty has been made against him. 57. I have considered aforesaid decisions as well as other relevant papers of appellants produced by learned advocate Mr. Totla. The partners should not be appointed as receiver when prima facie case of suspects of dishonesty has been made against him. 57. I have considered aforesaid decisions as well as other relevant papers of appellants produced by learned advocate Mr. Totla. At page 65 from compilation, agreement between partners dated 5-5-2006 which bear signature of all partners, arrived with consent by oral understanding that any of partner if it is required to have personal business by his personal capability then he can permitted to have his own personal business in name of his children or other person but for that partnership firm have not liable for profit or loss of such personal business of any partner and partners also having personal business may establish commercial relation with partnership firm. The original writing is remained with Rajeshbhai and copy is to be remained with remaining brothers. This agreement produced by learned advocate Mr. Shelat suggested that partners are entitled to have their personal business independently and also entitled to establish commercial relation with partnership firm. Therefore, allegations which are made against respondents having Ashish Trader being personal establishment of Mr. Dharamdas for getting personal gain while maintaining transaction with partnership firm can not be accepted when there was a agreement arrived between partners as referred above. The decisions which are relied by learned advocate Mr. Totla of Calcutta High Court as referred above are also not applicable to facts of this case because after allegation made by appellants against respondent, things have been set-right immediately by respondents as per explanation given by respondents along with documents produced before this Court. 58. Learned advocate Mr. Shelat made it clear to this Court that from date on which respondents are in management of partnership firm and thereafter appointed as receiver not a single pie has been misused or getting for personal gain by respondents. On the contrary, according to him, respondents are managing business as receiver honestly and whatever profits received, for which, appellants are also getting profit from partnership firm. Learned advocate Mr. Shelat submitted that accounts of each partnership has been audited by Chartered Accountant after verifying record filed income tax return and there is no illegality committed by respondents in respect to administration and management of partnership firm as receiver. 59. Learned advocate Mr. Shelat submitted that accounts of each partnership has been audited by Chartered Accountant after verifying record filed income tax return and there is no illegality committed by respondents in respect to administration and management of partnership firm as receiver. 59. He also made it clear that entire account of each partnership firm, they are prepared to open before any competent authority who can cheque it and verify that after appointing as receiver not a single pie has been misappropriated by any of respondents from said business. According to him, that because of appointment of respondents, business is remained continued which required special skill who understand need of customers and prestige and good will of partnership firm is also remained in tact and it has not been adversely affected in market as well as with customers. 60. He submitted that merely two or three incidents suggested by appellant conduct of respondents should not have to be doubted unless there is a concrete proof, proved by appellants while leading evidence before District Court, Nadiad. 61. He submitted that District Court, Nadiad has considered prayer made by appellants in interim relief application where also prayer made to close down business and to appoint receiver. So, instead of closing down business considering majority share of respondents, District Court Nadiad has entrusted business to manage and administrate as receiver which has been rightly complied with true spirit by respondents. 62. Learned advocate Mr. Totla placed on record reply along with compilation of respondent application Exh. So, instead of closing down business considering majority share of respondents, District Court Nadiad has entrusted business to manage and administrate as receiver which has been rightly complied with true spirit by respondents. 62. Learned advocate Mr. Totla placed on record reply along with compilation of respondent application Exh. 36, at page 49 of compilation, where details is given about share of partners in respect to each partnership firm, which is quoted as under: (a) K.M. Industries: Group A Group B Rajesh Shyam Lataben Dharmdas Hema Poonamben (i) Profit & Loss ratio (ii) Salary to working partners 30.00% 60.00% 10.00% 40.00% 15.00% 15.00% 15.00% 15.00% Profit & Loss Ratio : Salary to working partners : Group A : 55.00% Group B : 45.00% Group A : 100.00% (b) India Spices : Group A Group B Rajesh Shyam Vasu Dharmdas Poonamben (i) Profit & Loss Ratio (ii) Salary to working Partners 20.00% 10.00% 20.00% 70.00% 20.00% 20.00% 20.00% 20.00% (c) Indica Exporters : Group A Group B Rajesh Shyam Vasu Dharmdas (i) Profit & Loss Ratio (ii) Salary to working partners 25.00% 10.00% 25.00% 25.00% 25.00% 45.00% 25.00% 20.00% (d) Anupam Marketing : Group A Group B Rajesh Shyam Vasu Dharmdas (i) Profit & Loss Ratio (ii) Salary to working partners 20.00% 10.00% 20.00% 15.00% 40.00% 55.00% 20.00% 20.00% (e) Anupam Marketing : Group A Group B Rajesh Dharmdas p oonam (i) Profit & Loss Ratio (ii) Salary to working Partners 30.00% 50.00% 30.00% 50.00% 40.00% 63. In view of aforesaid share, of each partners including salary to working partners placed on record before District Court, Nadiad by appellants. Similarly, before this Court, learned advocate Mr. Shelat also placed on record share of each partners and salary to working partners, which has been accepted being correct situation as per partnership deed by learned advocate Mr. Thakkar on behalf of appellants. Therefore, comparing to this two statement given by both respective parties, District Court Nadiad has find out way, so interest of both parties must be balanced while deciding appointment as receiver to respondents. 64. The District Court, Nadiad has taken into account difficulties of each partnership firm may be put by freezing its day to day business activities thereby having an adverse impact on its credibility and reputation and also feasibility or otherwise of appointing a Receiver. 64. The District Court, Nadiad has taken into account difficulties of each partnership firm may be put by freezing its day to day business activities thereby having an adverse impact on its credibility and reputation and also feasibility or otherwise of appointing a Receiver. Therefore, District Court has appointed respondents as receiver, who save business and same remained continued which having no impact on reputation and credibility of partnership firm, same has been maintained by respondent because after appointment of respondent as receiver subsequently during pendency of proceeding no allegations have been made by appellants against respondents in respect to business maintain and manage by respondents. 65. I have also considered certain decision which have been relied by learned advocate Mr. Shelat as referred above, but in this case, it is necessary to be considered by this Court that family dispute between real brothers having some doubt with each other whether it spoil or destroy reputed standing business since many years or not? The District Court, Nadiad no doubt has been decided each issue in favour of appellants but there is also prayer made by appellant before District Court while filing interim relief application to effect that respondent should not carry business of partnership firm till decision of main application and they may be further restrained from using premises of partnership firm for their own use and they should not operate Bank account and receiver to be appointed with a direction to stay stock as on date and sell it and deposit money in Bank account. There is further prayer to issue direction to competent receiver or Commissioner to take inventory of stock available as on date, thereafter, to sell it and to deposit amount in Bank. The receiver to be appointed for selling existing stock of partnership firm otherwise, it will damage and heavy loss will be caused to firm. Against such type of prayer made in interim relief application by appellant before District Court, reply is filed by respondents, thereafter application for counter injunction exh 36 filed by respondents. 66. In light of this back ground, after considering submissions made by both learned advocates and considering relevant decisions cited by both parties, District Court has considered allegation made by appellants and explanation given by respondent, which has been discussed in interim order. 66. In light of this back ground, after considering submissions made by both learned advocates and considering relevant decisions cited by both parties, District Court has considered allegation made by appellants and explanation given by respondent, which has been discussed in interim order. The District Court has considered decision of Apex Court in case of "Firm Ashok Traders" while considering undisputed fact that respondents are in actual management and control of firm and appellant is not, and District Court, Nadiad also considered that respondents are in majority group having majority share 67% and appellant are in minority group having 33% share. This fact has been considered by District Court, Nadiad because ultimately anxiety of Court is that due to legal fight between real brothers, business of firm may not be destroyed or spoiled career of partners. This worry shown by District Court for saving reputation and prestige of partnership firm and also business may remain continued, so ultimately whatever may be result of this legal fight, but due to that business should not be suffered and also not having adverse impact on business. The District Court, Nadiad has also taken into account interest of appellants while passing interim order and considering certain direction issued by District Court, Nadiad, equity is maintained by passing interim order. So it will not adversely affect either party and business may remained continue till this legal fight may come to an end. The District Court, Nadiad has made it very clear while passing interim order that receiver and observer shall under control of this Court in case of any difficulties in carrying out interim order, parties and observer shall be at liberty having opportunity to seek further direction from District Court, Nadiad and also directed to respondents from restraining to do their individual family business in name of partners of partnership firm. The above interim arrangement has been made in interest of partnership firm and partners at large. Therefore, circumstances as such when interim application made by appellant and counter application is made by respondents and District Court Nadiad has visualised legal fight between partners, which ultimately destroyed entire business of family. Therefore, respondents have been appointed as receiver with certain directions having control over respondents and also keeping in mind interest of appellant which also taken care of share and right of appellants. 67. Therefore, respondents have been appointed as receiver with certain directions having control over respondents and also keeping in mind interest of appellant which also taken care of share and right of appellants. 67. In short, District Court, Nadiad has passed balanced order till main dispute is decided by competent Court. During interim period if 3rd party or stranger is appointed who is not having personal skill of business, then also result would be require to close down said business. Looking to nature of business as narrated by appellants and respondents both, definitely require to consider personal care of partners who are attached to business and also to consider demand of customers to have particular kind of products which required to be prepared as per need of customers. That can only be known to partners but not known to any strangers or outsiders. So business was in such a situation which ultimately destroyed entire business if respondents are not appointed as receiver. So there is a prima facie case require appointment of receiver which also suggested emergency and loss, demanding immediate action and ailment of danger was also there because of prayer made by appellant in interim relief application. Before appointment of receiver conduct of parties also require to be considered by Court. The averment made in interim relief application suggested require immediate action while considering ailment of danger and also considering allegation made against respondents, which have been also explained by respondents. 68. Therefore, order 40 Rule 1 of Civil Procedure Code is satisfied and it was found by District Court, Nadiad to be just and convenient to appoint receiver to respondents. There are circumstances available before District Court, Nadiad which require immediate action, otherwise entire business of family will be destroyed. The Court is having discretionary power, after considering facts and circumstances of case and also considering conduct of parties and find out whether it is just and convenient to do so or not? The District Court, Nadiad has considered this principle because prayer made by appellant to close down running business and sell entire stock and to deposit money in bank. It is very difficult to have appointment of receiver in running business but it is also simultaneously difficult to appoint as receiver outsider or 3rd party. The District Court, Nadiad has considered various option before appointment of receiver of respondents. It is very difficult to have appointment of receiver in running business but it is also simultaneously difficult to appoint as receiver outsider or 3rd party. The District Court, Nadiad has considered various option before appointment of receiver of respondents. The District Court, Nadiad has also considered that on the date of passing order 30-6-2008, respondents were having control on administration and management of running business and considering this fact, District Court Nadiad has appointed respondent as receiver. The District Court, Nadiad has taken sufficient measures while issuing directions to respondents which would protect and take care of interest of appellant, those who are not actually in running business. 69. Learned advocate Mr. Totla and Mr. Thakkar made a mention to this Court on 17-7-2009, that parties are agreed in arbitration proceeding filed by appellants where dispute has been referred to arbitral Tribunal and Honourable Mr. Justice M.S. Parikh (Retd.) is appointed as Chairman with two others Arbitrators agreed by both parties. The arbitral proceeding is also having power under section 17 of Arbitration Act to pass interim order being interim measures between parties. The relevant para 15 and 16 from "Firm Ashok Traders" have been rightly relied by District Court, Nadiad. 70. The reasoning for appointment of respondent as receiver given by District Court, Nadiad in paras 33, 34 and 35 of interim order which are quoted as under: "33. First of all, the material on record would reveals that the proprietors of the Ashish Traders is the son of the respondent No. 2 Mr. Dharamdas. In such situation, if we can refer the document Mark 26/8 so called agreement made between the parties would clearly emphasised that no partner shall use the partnership premises for his individual or in family business. It is pertinent to note that the stamps on which the agreement has been made was purchased on 10-3-2003, while the so called agreement has been made between the parties on 5-5-2006, however, as per the specific condition made in that document, individual business cannot be run in the premises of the partnership firm, thus it is required to be restrained the respondents to run his business either as a stuffing of the goods or packing or the manufacturing or selling at the premises of the partnership firm M/s Anupam Marketing or Dharamdas and Company. Therefore, in the wide interest of justice the respondents are restrained from using the premises of the partnership firm for making the business for their individual firm namely M/s. Ashish Traders in that premises. 34. Secondly, as per the documents on record, more particularly marks 3/3, 3/4, 3/5, 3/6, 3/7 and 3/8 would reveals that the money has been withdrawn from the partnership firm in the name of Dharamdas and as per the explanation given by the respondents the said amount has been deposited in the bank in the credit of M/s. Anupam Marketing Firm. But the explanation given by the respondents is also required to be considered and as per the application in the bank, so that they inclined to made the transaction by individual account. However, the intention of the party is required to be decided after final hearing of the applicant. In such peculiar circumstances and as per the evidence on record the partnership firm is running business which required special skill and expertization in process of grindings, packing, stuffing in the chilly powder, turmeric powder and garlic powder required as per the choice of the customers and nature of the business and required skill and quality control and personal attendants for grinding, stuffing, packing etc. then in that case, the business unit is handed over to a third party as a receiver then in that case it would effect the over all business of the partnership firm and it would be caused loss to both the parties. 35. Furthermore, as per the partnership deed Ex. 3/1, the respondents having 67% share in the business, while the applicant having 33% share, meaning thereby the respondents are in majority group, while the applicant is in minority group. In such circumstances and the business is in the nature of the intricacy and tricky then in that case as per the ratio laid down in case of Firm Ashok Traders and Ors v. Gurumukhdas Saluja, if the majority group i.e. the respondents who are under the actual management and control of the firm appoint as a receiver with certain direction then in that case the balance of convenience be maintained in this peculiar circumstances of the case." 71. The order with direction passed by District Court, Nadiad is also equally relevant to find out that District Court, Nadiad has taken sufficient care for passing balanced and equitable order while considering interest when respondents are appointed as receiver, which is quoted as under: "1. The application of the applicant is hereby allowed. 2. The respondents are restrained from using the premises of partnership firm for making their individual or family business either for stuffing of goods or packing or manufacturing or selling at premises of partnership firm. 3. In the wide interest of the business of the partnership firm as well as in the interest of the partners of the firm at large, following directions in the terms of interim measures, is hereby issued, till the final disposal of the application. DIRECTIONS 1. The business of the M/s. Anupam Marketing shall run as before under the actual management and control of the respondents not as partners, but as a receiver. 2. The chartered accountant of the partnership firm Mr. Bipinchandra Pranlal Shah who has been associated with the over all transaction of the firm shall act as an observer. The observer shall keep the watch on the business of M/s. Anupam Marketing generally to see - (i) that the business is run by the receiver without hindrance by any of the partners. (ii) that the accounts are properly, truly and correctly maintained, (iii) that the receipts and payment are properly vouched, (iv) that the sell and purchase process are properly accounted for and no part of the process is siphoned off and/or carried away unaccounted by anyone. 3. All the sells process shall be deposited day to day in bank account in the name of the partnership firm. Any amount to be withdrawn shall be only under the joint signatures of the majority partners with consultation to the observer, for the purpose of making the payment to the State and Central Government, rent, license fees, shop salary to staff, transportation charges other necessary expenses required for running day to day business. Yadi be issued to the concerned Bank. 4. It is specifically directed that though the conduct of the business is being allowed to be continued by majority group i.e. respondents, but that is in their capacity of receiver as appointed by the Court. They must truly and strictly perform their duties as receiver. Yadi be issued to the concerned Bank. 4. It is specifically directed that though the conduct of the business is being allowed to be continued by majority group i.e. respondents, but that is in their capacity of receiver as appointed by the Court. They must truly and strictly perform their duties as receiver. Any deviation would be view seriously. The applicant is authorised and shall have a reasonable right to visit the firm during business hours and watch the activities going on, but without interfering with the business activities by receivers. The observer shall be paid monthly remuneration and reimbursed such expenses as may be considered reasonable. The proceedings by appointing arbitrator with a knowledge that the arbitral award shall be finalised within a period of three months from the date of order of the Court. This arrangement shall continue till the arbitral award has been passed by the arbitrator or till final hearing of the application. 5. On the finalisation of the account duly audited by chartered accountant in profit or loss if any during accounting year and it shall be distributed in accordance with the award given by arbitrator or decision by any competent Court. 6. The receiver and the observer shall be under the control of this Court in case of any difficulties in carrying out this order the parties, the observer shall be at opportunity to seek direction from this Court. 7. The respondents are hereby restrained to do the individual or family business in the name and in the premises of the partnership firm. 8. Thus, the above interim arrangement has been made in the interest of the partnership firm and partners at large." 72. Looking to aforesaid conditions means direction issued by District Court, Nadiad more than sufficient care has been taken by District Court, Nadiad in interest of appellants. It is necessary to note that after issuing directions by District Court, Nadiad on 30-6-2008 not a single complaint or grievance raised by appellants before District Court, Nadiad against respondents by filing necessary application pointing out difficulties, therefore, it suggests that direction issued by District Court, Nadiad has been properly complied with by respondents. Such directions issued by District Court, Nadiad can not consider to be mechanically without application of mind. Such directions issued by District Court, Nadiad can not consider to be mechanically without application of mind. On the contrary, District Court, Nadiad has considered rival contentions from both sides and also keeping in mind interest of partnership firm and protecting interest of appellants wherein restriction have been made against respondents while acting as receiver. Therefore, contention raised by learned advocate Mr. Totla that District Court has committed gross error in passing interim order appointing receiver to respondents can not be accepted. 73. It is necessary to consider one important aspect in matter. The observer Vipinchandra has filed affidavit before this Court pointing out his inability to work as observer because of difficulty in eye side. Accordingly, considering his affidavit dated 16-12-2008, this Court has permitted to be retired as observer from proceeding. Therefore, check and balance principles required to be complied with when respondents are working as receiver. The District Court, Nadiad has appointed observer to have check and balance or to be remained control of independent person upon respondents, but unfortunately, observer is not able to work. 74. Therefore, according to my opinion, if certain direction may issue to District Court, Nadiad to appoint immediately any independent person having knowledge of business being Chartered Accountant as observer, and if respondents are directed as receiver to produce entire record means accounts of each partnership firm before observer from day on which they are in actual management and also period from interim order dated 30-6-2008 till 31-7-2009 and such observer, who has been appointed has to check all accounts of each partnership firm and then to submit report to District Court, Nadiad within some reasonable time and if respondents are directed to place on record account of Proprietor Ashish Traders having transactions with partnership firm to disclose it before observer and observer will also verify it to find out, whether any personal gain obtained by Dharamdas partners from Ashish Traders or not? Such report is to be prepared by observer after verifying entire account and all business transaction of all partnership firm including Ashish Traders and such report is to be also supplied by District Court, Nadiad to appellants, thereafter, appellant can verify report and find out if any illegality is committed by respondents while working as receiver, then they can approach to District Court, Nadiad by way of necessary application to put some further conditions against respondents as receiver. The dispute has been referred to Arbitral Tribunal by appointment of Honourable Justice Mr. M.S. Parikh (Retd.) with other two Arbitrator. Therefore, now period is not much remain more to have final solutions of inter-se dispute between partners. 75. Therefore, considering interests of all partners and also keeping in mind interest of business with unity of family, it is directed to District Court, Nadiad to appoint observer after hearing both parties immediately. After appointment of observer is made by District Court, Nadiad, respondents are directed to place complete accounts means all transactions of partnership firm from day on which they are in management in partnership firm and also further period from date of interim order passed by District Court, Nadiad on 30-6-2008 till 31-7-2009 before observer including account of Ashish Traders which can be verified by observer. 76. It is directed to observer after receiving all accounts of each partnership firm including account of Ashish Traders from respondents, within 15 days he should have to examine it as well as verify it and find out that any direction issued by District Court, Nadiad in interim order is violated or not by respondents and also to find out whether receiver has misused their position or not? and whether mismanagement has been there or not? for continuing business of partnership firm and then to submit report to District Court, Nadiad and copy of such report will be supplied to appellant by District Court, Nadiad, after receiving copy from observer, this will meet end of justice between parties when respondents have disclosed entire account and record of each partnership firm from date of which they are in management of partnership firm till 31-7-2009 including Ashish Traders. 77. According to my opinion, there is no illegality committed by District Court while passing interim order dated 30-6-2008 and there is no infirmity in its order. The District Court, Nadiad is rightly exercising discretionary power with application of mind and also issued certain directions protecting interest of appellant and looking to rival submission of both parties, it was necessary to appoint receiver immediately, otherwise, entire business remained stand still, which having adverse impact on business of partnership firm between family members. The District Court, Nadiad has given reason in support of its interim order rightly after considering majority share of respondents in each partnership firm after considering partnership deed produced on record by both parties. The District Court, Nadiad has given reason in support of its interim order rightly after considering majority share of respondents in each partnership firm after considering partnership deed produced on record by both parties. The decision of Apex Court in case of "Firm Ashok Traders" has been rightly considered and rightly considered prayer made by appellant in its application. The interim order can be considered as balanced and equitable order passed by District Court Nadiad being interim arrangement till Arbitrators are appointed by respective parties and now matter has been referred as both parties are agreed to appoint Honourable Mr. Justice M.S. Parikh as Arbitral Tribunal with two other Arbitrators with consent of both parties that will also being additional relevant factor not to disturb interim order passed by District Court, Nadiad which has been remained continued at least about 11 months without any complaint from appellant because no such complaint is made by appellants before District Court, Nadiad about non compliance of directions by respondents. Therefore, contentions raised by learned advocate Mr. Totla can not be accepted. 78. Hence, there is no substance in present appeal filed by appellants, accordingly, all appeals are dismissed. Today, this Court has dismissed all appeals filed by appellants, therefore, no order is required to be passed on civil applications. Hence, all are dismissed accordingly. No order as to costs. Appeals dismissed.