ORDER : 1. This application under Section 11 of the Arbitration and Conciliation Act, 1996, has been filed by three applicants, namely, Smt. Vimlesh Bansal, Smt. Shakuntala and Anand Kumar Singhal, praying for appointment of an independent arbitrator for resolving their disputes with non-applicant Ashok Kumar. 2. Facts, as disclosed in the memo of application, are that a partnership firm was constituted on 07.06.1999 in the name and style of M/s. Shakti Udyog Sangh having its office at Shri Prem Prakash Bansal, New Sabji Mandi, Station Road, Bayana, District Bharatpur. However, the office of the firm was shifted to the residence of the non-applicant with the consent of the parties. The business of the firm was of sale and manufacturing of stone grits. As per the mutual agreement, all the partners arranged for capital required to run the business of the firm. It was also agreed that each of the partner shall get interest at the rate of 12% per annum on their share of capital investment in the firm. The partners also agreed for their entitlement to receive remuneration as per Article 6 of the Partnership Deed executed on 07.06.1999. Applicant Anand Kumar Bansal had 30% share, applicant Smt. Shakuntala Bansal had 10% share, applicant Smt. Vimlesh Bansal had 30% share in the partnership firm. Non-applicant also had his 30% share in the partnership firm. Partnership firm had opened its account No.10011467 with the branch of Bank of Baroda, Station Road, Bayana, District Bharatpur, in the name of applicant Smt. Vimlesh Bansal and she is the fourth party in the firm and had 30% share capital. Clause 12 of the partnership deed, supra, provided that all matter of differences relating to the partnership shall be referred to arbitrator appointed by the partners as per provision of the Arbitration Act, and the decision of the arbitrator shall be binding upon all the partners. 3. Mrs. Anjoo Shukla, learned counsel for applicants, argued that ever since the office of the firm was shifted to the residence of non-applicant, he started violating the conditions contained in the clauses of the partnership deed. The non-applicant has taken entire business of the firm and its machinery and assets exclusively in his hands and is misappropriating it as per his own free will and without even consulting or informing the applicants. The non-applicant has taken entire business of the firm and its machinery and assets exclusively in his hands and is misappropriating it as per his own free will and without even consulting or informing the applicants. The non-applicant has established a parallel industry having similar business and has caused huge financial loss to the partnership firm. Although, the material was produced in the partnership firm but the non-applicant conducted entire sale and transactions of it in the name of his own firm so much so that the non-applicant eventually closed the functioning and production of the partnership firm and started to devote entire work to his own firm. After 06.06.2005, the non-applicant had no transaction with the bank but he opened another account and dealing with the business of his own profit and causing huge financial loss to the partnership firm. Despite persistent request by the applicants, the non-applicant in the last week of August, 2009, completely refused to abide by the terms and conditions of the partnership deed. The applicants therefore served a legal notice through their counsel on 21.08.2009 calling upon him to dissolve the firm and to produce and furnish the accounts and other documents of the firm, which were in his possession and also to give complete account of business activities of the firm after June, 2005, and further to stop using crusher machine. He was also called upon to furnish name of arbitrator within thirty days of service thereof, failing which appropriate steps shall be taken to file proper application. When the non-applicant did not respondent thereto, another notice was served through advocate on 09.09.2011, wherein similar demand was made. Even then the non-applicant failed to reply such notice. 4. Learned counsel for applicants, in support of her arguments, has relied on judgments of the Supreme Court in Visa International Ltd. Vs. When the non-applicant did not respondent thereto, another notice was served through advocate on 09.09.2011, wherein similar demand was made. Even then the non-applicant failed to reply such notice. 4. Learned counsel for applicants, in support of her arguments, has relied on judgments of the Supreme Court in Visa International Ltd. Vs. Continental Resources (USA) Ltd. - AIR 2009 SC 1366 , and argued that the Supreme Court in the facts of that case as well as from the exchange of correspondence between the parties that there has not been any satisfaction recorded by the parties with respect to their claims and there was no mutual satisfaction arrived at between them as regards the dispute and further the claims were not barred by limitation, held that there is a live issue subsisting between the parties requiring its resolution and a clear case was made out for appointment of arbitrator to decide disputes between the parties. 5. Per contra, Mr. Shiv Charan Gupta, learned counsel for non-applicant, opposed the application and submitted that the application is liable to be dismissed because the applicants have not disclosed as to what exactly is the dispute, which is required to be referred to the arbitrator. At the most, the matter pertains to dissolution of the partnership firm, for which civil suit is maintainable before the civil court in view of the provisions contained in Sections 44 and 48 of the Indian Partnership Act. According to the applicants, the business of the partnership firm was shifted to the residence of the non-applicant, who allegedly took the entire assets and business of the firm but the applicants have not submitted any document to prove the above facts. As per the own showing of the applicants, bank account of the partnership firm was opened in the name of applicant Smt. Vimlesh Bansal and not in the name of the non-applicant. Business of the firm was being carried out from the office at the residence of the non-applicant. Partnership firm has already been closed in June, 2005. The partnership was not at will. Perusal of the provisions of Section 43 of the Indian Partnership Act would make it clear that the dispute has to be adjudicated by the civil court. Business of the firm was being carried out from the office at the residence of the non-applicant. Partnership firm has already been closed in June, 2005. The partnership was not at will. Perusal of the provisions of Section 43 of the Indian Partnership Act would make it clear that the dispute has to be adjudicated by the civil court. Any aggrieved party to the partnership firm can ask for rendition of accounts and also for dissolution of the partnership firm under the aforesaid provisions of the law by filing a civil suit in the competent court of civil jurisdiction. The non-applicant has produced on record copy of bank statement dated 30.09.2011 (Annexure R/1). 6. Learned counsel for non-applicant has also invited attention of the court towards the information received from the Sales Tax Department dated 30.12.2011 (Annexure R/2). The firm was dissolved and registration of the partnership firm was cancelled with effect from 01.04.2005. In the circumstances, according to learned counsel for non-applicant, there is no live dispute between the parties inasmuch as the application has been filed with enormous delay in the year 2011. Learned counsel for non-applicant, in support of the case, has relied on judgments of the Supreme Court in SBP & Co. Vs. Patel Engineering Ltd. And Another – (2005) 8 SCC 618 , Shree Ram Mills Ltd. Vs. Utility Premises (P) Ltd. - (2007) 4 SCC 599 , and M/s. Tata Industries Ltd. And Another Vs. M/s. Grasim Industries Ltd. - AIR 2008 SC 2970 . 7. I have given my anxious consideration to rival submissions and perused the material on record. 8. Indisputably, the partnership deed was executed between the parties on 07.06.1999, according to which three applicants and one non-applicant were the partners thereof. Business of the partnership firm was mainly of manufacturing and sale of stone grits and any other goods which the partners unanimously decide in writing. Clause 5 of the partnership deed provides that required funds for the purpose of the partnership shall be arranged by the partners in such manner as may be mutually agreed upon by and between them from time to time and they shall be entitled to receive interest at the rate of 12% per annum, on their capital investment in the firm. Clause 6 of the partnership deed provides that parties of the first and second part of the partnership deed, namely Ashok Kumar and Anand Kumar Singhal, shall be the working partners in the firm. It was further provided that all working partners will get equal remuneration and their remuneration shall be in the manner indicated in para 6, namely, the book profit is nil, the remuneration will be nil; where by took profit is 50,000/-, the remuneration will be 100% of actual profit; on the first 50,000/- to 75,000/-, the remuneration will be Rs.50,000/- or 90% of book profit, whichever is more; on the next 75,000/- to 1,50,000/-, the remuneration will be Rs.67,500/- + 60% of exceeding Rs.75,000/-; and, on the balance of book-profit, the remuneration will be Rs.1,12,500/- plus 40% profit exceeding Rs.1,50,000/-. After charging remuneration and interest to partners and all outgoing expenses, the net profit and loss of the partnership firm shall be shared by the partners to the extent of their shares. It was also agreed that an account shall be opened of the firm in a nationalized bank in the name of applicant Smt. Vimlesh Bansal, and account books shall be kept at the business place on the written postal address, namely, Hindaun Road, Sikindra, Tehsil Bayana, District Bharatpur, and office address shall be Shri Prem Prakash Bansal, New Sabji Mandi, Station Road, Bayana. 9. While it appears from the documents placed on record that the firm has stopped working in June, 2005 and its registration with the Commercial Taxes Department has been cancelled with effect from 01.04.2005. The details of the bank account produced by the applicants on record indicates that the bank account was operative even for the period from 11.02.2008 to 23.09.2011, which hardly shown any entry. That would mean that the firm was not operative, but the applicants alleged that the crusher and other machinery of the partnership firm were virtually under the control of the non-applicant, who started running parallel business in his own name. The applicants alleged that they pointed out to the non-applicant that he had misappropriated the funds of the partnership firm and also took the assets of the said firm at his free will without consulting them or even without informing, which caused huge financial loss to the firm as also the applicants. The applicants alleged that they pointed out to the non-applicant that he had misappropriated the funds of the partnership firm and also took the assets of the said firm at his free will without consulting them or even without informing, which caused huge financial loss to the firm as also the applicants. The applicants made repeated requests to the non-applicant by way of letters to resolve the dispute, which were not replied by him and eventually the applicants served upon the non-applicant legal notice on 21.08.2009 and thereafter on 09.09.2011. 10. The question that arises for consideration is whether the application is maintainable because the applicants could have filed civil suit for dissolution of the partnership firm and rendition of account and whether the claim set up by the applicants is enormously time barred and therefore it cannot be referred to the arbitration. 11. The Supreme Court in SBP & Co., supra, held that the Chief Justice and his designate, while functioning under Section 11(6) of the Act, is bound to decide whether (1) he has jurisdiction, (2) there is a valid arbitration agreement in terms of Section 7, (3) the person before him with the request, is a party to the arbitration agreement, and (4) there is a dispute/live claim subsisting which is capable of being arbitrated upon. While there cannot be any dispute about first of these three conditions, the fourth, of course, a dispute is being raised by the non-applicant in the present case. On that there is no subsisting dispute or live claim, the Supreme Court held that the Chief Justice or his designate has to also decide whether there is a dispute or live claim under the purview of arbitration agreement or it should be left to be decided by the arbitral tribunal on taking evidence, along with merits of the claims involved, and at the same time, the Chief Justice or his designate can also decide question whether the claim was a dead one or a long barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. 12. 12. In Shree Ram Mills Ltd., supra, also the Supreme Court held that if the Chief Justice or his designate does not decide the issue whether the claim is a dead one, in that event, it is for him to locate such issue and record his satisfaction that such issue exists between the parties. It was held that once it is concluded that there was live issue and question of limitation automatically gets resolved. Till such time as the settlement talks are going on directly or by way of correspondence no issue arises, and with the result the clock of limitation does not start ticking. In M/s. Tata Industries Limited, supra, also the plea that share purchase agreement obliterated earlier agreements and there was no live issue, the Supreme Court held not tenable as non-applicant was already facing arbitral notice, and the application for appointment of arbitrator was allowed. 13. In National Insurance Company Limited Vs. Boghara Polyfab Private Limited – (2009) 1 SCC 267 , the Supreme Court held that whether a contract has been discharged by performance is a mixed question of fact and law, and if there is a dispute in regard to that question, that is arbitrable. In an application under Section 11 of the Act of 1996, the preliminary issues that may arise for consideration by the Chief Justice of his designate, can be into three categories, first category consists of issues which the Chief Justice or his Designate is bound to decide; second category consists of issues which he can also decide, that is issues which he may choose to decide; and third category consists of issues which should be left to the Arbitral Tribunal to decide. The issues falling in second category, are - whether the claim is a dead (long barred) claim or a live claim, and Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. The cases falling in third category are - whether a claim made falls within the arbitration clause, and merits or any claim involved in the arbitration. In para 25 of the report, it was held by the Supreme Court that when a contract has been fully performed, there is a discharge of the contract by performance, and the contract comes to an end. In para 25 of the report, it was held by the Supreme Court that when a contract has been fully performed, there is a discharge of the contract by performance, and the contract comes to an end. Then there cannot be any dispute and consequently, there cannot obviously be reference to arbitration of any dispute arising from a discharged contract. It was held that where both the parties to a contract confirm in writing that the contract has been fully and finally discharged by performance of all obligations and there are no outstanding claims or disputes, courts will not refer any subsequent claim or dispute to arbitration. 14. In Speech and Software Technologies (India) Private Limited Vs. Neos Interactive Limited – (2009) 1 SCC 475 , also it was held by the Supreme Court that the preliminary issues to be considered by the Chief Justice of his designate are (1) existence of arbitration agreement, (2) territorial jurisdiction, (3) whether there are live issues to be referred to the arbitrator, and (4) whether application is filed within the period of limitation prescribed by the law. If the court finds that the arbitration agreement does not exist or is rescinded, then the prayer for referring the dispute to the arbitrator will have to be rejected. 15. Even if, the business of the firm was stopped in 2005, in view of the allegation of the applicants that the non-applicant virtually took over not only the business of the firm but also its assets including crusher, and started running his own business of similar nature and did not render the accounts, it cannot be said to be a non-existing dispute. The first notice was served by the applicants on the non- applicant through counsel on 21.08.2009 and second such notice was served by them on the non-applicant on 09.09.2011 praying for rendition of account and appointment of arbitrator for resolving the disputes and therefore delay in the case cannot be said to be so enormous so as to turn the claim of the applicants into a dead claim so as to not to be resurrected. Although, it is delayed, but delay in the facts of the case cannot be said to be enormous. Although, it is delayed, but delay in the facts of the case cannot be said to be enormous. Even then, it would be open to the non-applicant to raise this issue before the arbitrator on the entitlement of the claimants/applicants about their claim, but delay cannot be so enormous so as to disentitle the applicants to get the dispute referred to the arbitrator. 16. In view of the above, present application deserves to succeed and same is allowed. Mr. Brij Mohan Gupta, retired District Judge, R/o 27-A, New Civil Line, Saras Hotel to Circuit House Road, Bharatpur, District Bharatpur, (Cell No.9413693475) is hereby appointed as an independent sole arbitrator to resolve the disputes between the parties. The cost of arbitration proceedings and the arbitration fees shall be as per the Manual of Procedure for Alternative Dispute Resolution, 2009, of this Court, as amended from time to time. 17. A copy of this order be sent to Mr. Brij Mohan Gupta, retired District Judge, R/o 27-A, New Civil Line, Saras Hotel to Circuit House Road, Bharatpur, District Bharatpur, (Cell No.9413693475).