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2017 DIGILAW 32 (UTT)

Sanjay Prasad @ Sanjay v. Manju Joshi

2017-01-12

SERVESH KUMAR GUPTA

body2017
JUDGMENT : Servesh Kumar Gupta, J. Having heard the learned senior counsels on behalf of either of the party, it transpires that a Gym for physical exercise was commenced on 09.11.1996 under the oral agreement between the appellant and the respondents. The terms of such agreement were reduced into writing on 28.11.1997 and got registered in the office of Sub-Registrar, Nainital. It was some sort of partnership, but not strictly a partnership firm as envisaged under the Partnership Act of 1932. But, all the same, it was a partnership under the mutual settlement of the terms subject to the condition that building owned by both the respondents jointly (the spouse) was to be used by the appellant Mr. Sanjay Prasad @ Sanjay for running this Gym. 2. The building in question is located on the Mall Road of Nainital. Mr. Sanjay Prasad had to pay Rs. 1,000/- per month as the user charges of such building to the respondents. Somehow, the dispute erupted because of the default in making the payment as stated above. So notices were issued by the land owners to Mr. Sanjay Prasad on 27.5.2010 and thereafter further on 27.11.2011. Mr. Sanjay Prasad turned the deaf ear. So, a suit for vacation and recovery of the rental charges were instituted on 28.8.2011. Mr. Sanjay Prasad appears and drawn the attention of the Court towards the Clause 13 of agreement dated 28.11.1997, which contemplates that in case of any dispute, the matter shall be referred to the arbitrator, who shall be none other but Shri N.C. Mungali, Advocate. The learned Trial Judge accordingly accepted the objections of Mr. Sanjay Prasad and referred the matter to Mr. Mungali, Advocate. 3. Mr. Sanjay was not satisfied with the performance of Mr. Mungali, hence, questioned his integrity. On the other hand, Mr. Mungali was also not happy for proceeding this arbitration any further, so he also expressed his inability in such circumstances to conduct the arbitration proceedings. The matter somehow came up before the High Court and the coordinate bench of this Court vide order dated 14.01.2015 with the consent and as suggested by the parties appointed another arbitrator Justice (Retd.) Irshad Hussain to give his findings on the controversy between the parties. 4. The arbitration was conducted by Justice Irshad Hussain and he gave his finding on 31.10.2015 in favour of the respondents and asked Mr. 4. The arbitration was conducted by Justice Irshad Hussain and he gave his finding on 31.10.2015 in favour of the respondents and asked Mr. Sanjay Prasad to vacate the rented premises within a month, besides payment of all arrears of rent etc. Mr. Sanjay feeling dissatisfied presented the revision before the learned District Judge under Section 34 of the Arbitration Act and the learned Judge, vide an elaborate judgment running in 21 pages, dismissed the revision. Mr. Sanjay still feeling dissatisfied has come up before this Court invoking the powers under Section 37(i)(c) of the Arbitration act. 5. Learned senior counsel has relied upon the precedent of Hon’ble Apex Court in the case of Santiranjan Das Gupta vs. Messrs. Dasuram Murzamull reported in (1973) 3 SCC 463 . He has argued that the agreement between the parties did not generate a partnership between them because creation of partnership pre supposes several formalities to be fulfilled at both ends and such requirements have been highlighted by the Hon’ble Apex Court in such judgment. These are as under:- a. That there was no written agreement of partnership and no record was kept regarding its terms and conditions. b. That no accounts of the partnership business were maintained. c. That no account of partnership was opened with any bank. d. That no written intimation was conveyed to the Dy. Director of Procurement. e. That the plaintiff had agreed to charge very low rates for milling the defendant’s paddy. 6. I am of the view that Mr. Sanjay can not raise this point having lost his case from all the forums at this point. He is estopped from raising these points because he himself was a consenting party to the agreement and accepted all the terms and conditions, which were reduced in writing under his signature, on 28.11.1997. The scope of this Court under Section 37 of the Act is very-very narrow and can be exercised when the judgment of the arbitrator as confirmed by the learned District Judge is highly perverse. 7. I have not been persuaded to take a different view than the views taken by the arbitrator as well as the learned District Judge while dismissing the revision under Section 34 of the Act. This appeal is dismissed. 8. However, on humanitarian ground, I extend the period of six months (on payment of rent) from today, meaning thereby, Mr. 7. I have not been persuaded to take a different view than the views taken by the arbitrator as well as the learned District Judge while dismissing the revision under Section 34 of the Act. This appeal is dismissed. 8. However, on humanitarian ground, I extend the period of six months (on payment of rent) from today, meaning thereby, Mr. Sanjay Prasad will vacate the building in question up till 12.7.2017. Rest of the operative portion as passed by the learned arbitrator shall remain intact and applicable against Mr. Sanjay Prasad as such.