Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 1140 (ALL)

KUMAR OJHA v. SHESH NARAYAN TRIPATHI

2014-04-09

PANKAJ MITHAL

body2014
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Abhishek Mishra, learned counsel for the petitioner. 2. Petitioner is seeking appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 in connection with the dispute relating to the partnership agreement dated 18.1.2011 which was between the father of the petitioner and the respondent for running a brick kiln. Unfortunately, the father of the petitioner died during the subsistence of the said partnership whereupon despite demand by the petitioner the accounts of the partnership firm were not furnished and the petitioner has not been favoured with the income of the partnership. 3. The partnership agreement contains clause No. 13 which requires the dispute between the parties to be resolved by the good offices of an arbitrator. 4. The petitioner accordingly vide registered notice dated 5.4.2013 invoked the arbitration clause but the respondent failed to accept the reference of the dispute to the arbitrator. 5. In the counter-affidavit filed on behalf of the respondent the partnership agreement and the existence of arbitration clause therein is not denied. However, two objections have been taken. 6. The first objection is that the notice invoking the arbitration clause was not served upon respondent and secondly, the partnership agreement was not with the petitioner and therefore petitioner has no locus to raise any dispute or demand of arbitration in relation thereto. 7. In dealing with the first objection it is important to refer to the rejoinder-affidavit by which the petitioner has brought on record the track result regarding delivery of the registered post under which the notice invoking the arbitration clause was sent to the respondent. The postal receipt of sending the aforesaid notice by registered post indicates that the notice was sent on 8.4.2013 and it was addressed to the respondent. The track result of the said post shows that it has been delivered. 8. In view of the above, the objections of the respondent that he has not been served with the notice invoking the arbitration clause is not acceptable. 9. Now coming to the second objection it is relevant refer to Section 40 of the Act. It reads as under : “40. 8. In view of the above, the objections of the respondent that he has not been served with the notice invoking the arbitration clause is not acceptable. 9. Now coming to the second objection it is relevant refer to Section 40 of the Act. It reads as under : “40. Arbitration agreement not to be discharged by death of party thereto: (1) An arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or as respects any other party, but shall in such event be enforceable by or against the legal representative of the deceased. (2) The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed. (3) Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.” 10. Section 40 of the Act clearly mandates that the arbitration agreement shall not be discharged by death of any party thereto. It further provides that in case of death of any party thereto, it shall be enforceable by or against a legal representative of the deceased. 11. In view of the aforesaid provision on the death of father of the petitioner who was signatory to the partition agreement, the petitioner being his heir and legal representative is legally competent to enforce the said agreement and to raise the dispute for reference to the arbitration. 12. In the case of Ravi Prakash Goel v. Chandra Prakash Goel and another, 2007 AIR SCW 2060, their Lordship of the Supreme Court dealt with an identical controversy regarding appointment of an arbitrator on the application by the legal representative of a deceased partner. The Court while considering the provisions of Section 46 and 48 of the Partnership Act, 1932 and that of Section 40 of the above Act held that an application for appointment of an arbitrator is maintainable as the right to sue for rendition of accounts of partnership firm on the death of one of the partners survives and accrues to the legal representatives of the deceased partner who becomes entitle to invoke the arbitration clause so as to get the dispute in that regard adjudicated. In short, the Apex Court ruled that application for appointment of an arbitrator under Section 11 of the Act by the legal representative of the deceased partner is maintainable. 13. In view of the aforesaid facts and circumstances, the dispute raised by the petitioner is referable to the sole arbitrator. 14. Accordingly, I appoint Sri Maqsood Ahmad, a retired District Judge, resident of 11-A, Beli Road, New Katra, Allahabad, Mobile No. 9415021390 as the sole arbitrator. 15. Registry is directed to send a copy of this order to the learned arbitrator with the request to enter into arbitration forthwith. 16. Petition is allowed. —————