Research › Search › Judgment

Calcutta High Court · body

2023 DIGILAW 1123 (CAL)

Subho Deep Roy v. State of West Bengal

2023-07-12

ARIJIT BANERJEE, PARTHA SARATHI SEN

body2023
JUDGMENT : Partha Sarathi Sen, J. 1. The judgement and order dated 01.06.2023 passed in the appellant’s writ petition being WPA 1206 of 2023 by a Learned Single Judge of this Court has been impugned in the instant appeal . By the impugned order Learned Single Judge dismissed the writ petition wherein prayer was made inter alia, for a direction upon the SDO, Mal, Jalpaiguri, the respondent no.5 herein, to renew the licence of the concerned partnership business on his own signature excluding the signatures of the other partners who are the private respondents herein. The writ petitioner, being aggrieved, has preferred the instant appeal. 2. For effective disposal of the instant appeal, the facts leading to filing of WPA 1206 of 2023 are required to be stated in a nut shell. 3. Admittedly the present appellant and the private respondent nos. 8 to 11 are the partners of a partnership business carried on under the name and style of ‘M/s Roy and Cousins’ which is a petrol pump at Mal, District Jalpaiguri. It is also a matter of record that in between the partners of the aforementioned firm, several litigations are pending both before the District Court as well as before this Court. From the material placed before us it appears that on account of dispute between the partners on an application under Section 11 of the Arbitration and Conciliation Act, 1996, being AP 279 of 2023 (Shyamal Roy and ors. vs. Subhodeep Roy), a Single Bench of this Court by its order dated 17.05.2023 constituted an Arbitral Tribunal to resolve the disputes between the partners of the said firm. 4. It is also undisputed that the said Arbitral Tribunal is still functioning and is at present in seisin of the matters which were referred to arbitration by the said Learned Single Bench in AP 279 of 2023. During the pendency of the said arbitral proceeding as well as civil suits pending before the District Courts, the present appellant/ writ petitioner, as the managing partner of the firms, made an application dated 14.12.2022 before the respondent no.5 authority for renewal of the business licence. During the pendency of the said arbitral proceeding as well as civil suits pending before the District Courts, the present appellant/ writ petitioner, as the managing partner of the firms, made an application dated 14.12.2022 before the respondent no.5 authority for renewal of the business licence. It is also pertinent to mention herein that on account of discord between the partners, the private respondents on 12.11.2022 wrote a letter to the respondent authority not to renew the licence of the said petrol pump in the name of the said partnership firm only under the signature of the present appellant. As a result, the respondent authority being the S.D.O, Mal, Jalpaiguri under cover of its memo no.009/JM- MSHSD 2022 dated 03.01.2023 refused to renew such licence in favour of the said partnership firm and in the said memo the respondent authority directed the appellant/writ petitioner to submit application for renewal of the licence of the petrol pump in favour of the aforementioned partnership firm under the signature of all the partners by 31.01.2023. 5. The appellant, under cover of his letter dated 24.02.2023, made a representation to the respondent authority for renewal of the licence of the aforementioned petrol pump in favour of the said partnership firm. Alleging in-action on the part of the respondent no.5 to consider such representation, the aforementioned writ petition was filed. 6. While passing the impugned order the Learned Single Bench found that the dispute raised in the said petition being WPA No. 1206 of 2023 is practically a partnership dispute between the present appellant and the private respondents and therefore whether or not the present appellant has the right to apply for renewal of licence on his own and single handedly is to be decided by the Arbitral Tribunal. Based on the aforementioned finding, the Learned Single Bench passed the impugned order dismissing the said writ petition. 7. Mr. Ray, Learned advocate for the writ petitioner/ appellant, in course of his submission, at the very outset drew attention of this Court to Annexure P-18 of the stay application being a photocopy of the West Bengal Motors Spirit and High Speed Diesel (Licensing and Regulation of Spirit) Order, 2000, (hereinafter referred to as the ‘said order of 2000’). 7. Mr. Ray, Learned advocate for the writ petitioner/ appellant, in course of his submission, at the very outset drew attention of this Court to Annexure P-18 of the stay application being a photocopy of the West Bengal Motors Spirit and High Speed Diesel (Licensing and Regulation of Spirit) Order, 2000, (hereinafter referred to as the ‘said order of 2000’). Drawing attention to Rule 4 read with Form C1 of the said ‘Order of 2000’, it was argued that from the said ‘Order of 2000’ it would appear that any one partner of the partnership firm may apply for renewal of licence under Rule 4 of the said ‘Order of 2000’. It was thus contended that while making the application for renewal of licence, the appellant being the managing partner of the aforementioned partnership firm made no infraction of the Rules for renewal of licence which ought to have been considered by the Learned Single Bench. 8. Drawing attention to a photocopy of the memo dated 03.01.2020 issued by respondent authority, it was contended further on behalf of the appellant that Learned Single Bench has failed to appreciate that the respondent no.5-authority has acted beyond its jurisdiction in directing the present appellant to submit his application for renewal of licence of the concerned petrol pump in the name of the aforementioned partnership firm under the signatures of all the partners of the said firm violating the aforesaid provisions of ‘Order of 2000’. 9. Drawing attention to Annexure P-9 and Annexure P-11 of the stay application, it was further submitted by Mr. Ray that Learned Single Bench has also failed to consider that in Misc. Appeal no. 284 of 2022, Learned District Judge, South-24-Parganas, Alipore, permitted the present appellant to run the aforesaid partnership business alone, albeit with some conditions, and inspite of the same there cannot be any justification on the part of the respondent no.5 to refuse to renew the licence as prayed for by the appellant. 10. Appeal no. 284 of 2022, Learned District Judge, South-24-Parganas, Alipore, permitted the present appellant to run the aforesaid partnership business alone, albeit with some conditions, and inspite of the same there cannot be any justification on the part of the respondent no.5 to refuse to renew the licence as prayed for by the appellant. 10. Drawing attention to Annexure P-1 of the stay application it was contended that from the deed of partnership entered into by and between the present appellant and the private respondents, it would appear that as per Clause 8 of the said partnership deed, the partners of the said partnership firm shall be entitled to act jointly and/or severally and therefore the present appellant did not breach any relevant rule in applying for renewal of the licence under his sale signature, which the Learned Single Bench failed to appreciate while passing the impugned order. 11. Drawing attention to Annexure P-16 of the stay application it was further contended by Mr. Ray that in AP 279 of 2023, the private respondents in their application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘said Act of 1996’ in short) categorically admitted that after the death of one of the original partners viz; Nirmal Roy, his legal heirs have not been inducted so far and thus the partnership has not yet been constituted in proper manner and therefore there cannot be illegality and/or irregularity on the part of the present appellant /writ petitioner in applying for renewal of licence of the partnership business being a petrol pump under his sole signature. Mr. Ray, further submitted that the impugned order as passed by the Learned Single Bench is wholly unjustified and not tenable in the eye of law. Mr. Ray thus submitted that this is a fit case for setting aside the impugned order. It was also submitted by Mr. Ray that while allowing the instant appeal a direction be passed upon the respondent authority to renew the licence of the partnership firm under the sole signature of the writ petitioner. 12. Mr. Dasgupta, Learned advocate for the private respondent nos. 8 to 11 however opposed the prayers made by Mr. Ray. Mr. It was also submitted by Mr. Ray that while allowing the instant appeal a direction be passed upon the respondent authority to renew the licence of the partnership firm under the sole signature of the writ petitioner. 12. Mr. Dasgupta, Learned advocate for the private respondent nos. 8 to 11 however opposed the prayers made by Mr. Ray. Mr. Dasgupta in course of his submission drew attention of this court to a photocopy of the deed of partnership which has been annexed with the stay petition with the mark ‘P-1’. It was submitted on behalf of the private respondents 8 to 11 that Clause 4 of the said partnership deed clearly postulates that on the death of one of the partners of the said partnership firm, the partnership would not come to an end and on the contrary the legal heirs of the deceased partner will step into the shoes of the deceased partner and they will become partners of the said partnership firm, on the same terms and conditions as were applicable to the deceased partner and that in Clause 17 of the said partnership agreement it has been specifically provided that in case any dispute or difference arises, the matter should be referred to arbitration. 13. It was further contended by Mr. Sengupta that whether the present appellant being the writ petitioner is alone entitled to apply for renewal of the licence of the partnership business or not is also a dispute and/or difference within the meaning of Clause 17 of the said partnership deed and therefore the Learned Single Bench while passing the impugned judgement and order rightly came to a conclusion that such matter shall have to be decided by the Arbitral Tribunal. It was thus contended by Mr. Dasgupta that the finding of the Learned Single Bench in this regard in the impugned judgement is absolutely justified and therefore the same requires no interference in this appeal. 14. In course of hearing of the impugned appeal some print outs have been handed over to us on behalf of the private respondent nos. 8 to 11. Drawing attention to such print outs, it was argued by Mr. 14. In course of hearing of the impugned appeal some print outs have been handed over to us on behalf of the private respondent nos. 8 to 11. Drawing attention to such print outs, it was argued by Mr. Dasgupta that from the said print outs it would appear that the present appellant/writ petitioner while making online application for MSHSD Dealers licence, supplied incorrect information to the competent authority being respondent no.2 herein since in such application the present appellant/writ petitioner has only disclosed his name as the partner of the aforesaid firm without disclosing the names of the private respondent nos. 8 to 11 as its partners. It was further submitted by Mr. Dasgupta that since the dispute as raised before the Writ Court comes within the ambit of partnership dispute between the appellant and the private respondents, the Learned Single Bench was absolutely justified in not entering into the dispute while passing the impugned order. Mr. Dasgupta thus submitted that it is a fit case for dismissal of the instant appeal. 15. Mr. Saha Learned AGP, duly assisted by Mr. M. Rahman, Ld. Advocate, appearing for the State/ respondents submitted before this Court that the respond no.5 being the SDO, Mal, Jalpaiguri is not a competent person to decide the dispute between the present appellant and the private respondents and therefore he is absolutely justified in asking the present appellant to submit his application for renewal of the partnership licence under the signatures of all the partners especially when the private respondents being the other partners of the said partnership firm requested the respondent no. 5-authority not to renew such licence except under the signatures of all the partners on the application for renewal. Mr. Saha thus submitted that the present appeal should be dismissed. 16. We have considered the rival submissions of the Learned advocates for the contending parties. We have meticulously perused the entire material as placed before us. 17. Admittedly there is a partnership dispute between the appellant and the private respondents for which the partnership business has practically come to a halt and MSHSD licence of the partnership firm cannot be renewed. Sufficient materials have been placed before us to substantiate that there lies a series of litigation between the appellant and the private respondents with regard to running of business of the said partnership firm. Sufficient materials have been placed before us to substantiate that there lies a series of litigation between the appellant and the private respondents with regard to running of business of the said partnership firm. On perusal of Annexure P-11 of the stay application it appears that the Learned District Judge, South-24-Parganas at Alipore, in Misc. Appeal No. 284 of 2022 by his order dated 13.09.2022, while granting the ad-interim order of injunction, directed the present appellant not to utilize the sale proceeds of the petrol pump and/or allied products, save and except to make payment to the oil company for the supply of petroleum products. On perusal of the said order dated 13.09.2022 passed by Learned District Judge, South-24-Parganas at Alipore, it appears further that under no stretch of imagination the said Court permitted the present appellant to carry on the said partnership business alone as was the contention of Mr. Ray, Learned advocate for the appellant. On perusal of the order dated 17.05.2023 passed in AP 279 of 2023 it appears that another single Bench of this Court while passing the said order duly considered the partnership agreement dated 12.12.2001 entered into by and between the present appellant and the private respondents and came to a specific finding that the disputes that have arisen between the parties pertain to the partnership and in view of the arbitration clause in the partnership deed, such disputes are required to be resolved by way of arbitration. Accordingly, the learned Judge constituted an Arbitral Tribunal and referred the disputes to the Tribunal. 18. In our considered view the dispute as raised by the Appellant/writ petitioner either before the respondent no. 5-authority or before the Leaned Single Bench in WPA No. 1206 of 2023 is a partnership dispute and neither the respondent no.5-authority nor the Learned Single Bench has any jurisdiction to decide such dispute. In our further considered view Learned Single Bench was thus very much justified in holding that the relief as claimed by the writ petitioner before him relates to partnership dispute which ought to be decided by the Learned Arbitral Tribunal. 19. In view of the discussion made hereinabove, we find sufficient justification in the impugned judgment and order passed by the Learned Single Judge in WPA 1206 of 2023 and therefore we find no reason to interfere with the same. 20. 19. In view of the discussion made hereinabove, we find sufficient justification in the impugned judgment and order passed by the Learned Single Judge in WPA 1206 of 2023 and therefore we find no reason to interfere with the same. 20. As a result the instant appeal is hereby dismissed. 21. Consequently the connected application is also dismissed. 22. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. I Agree.