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2025 DIGILAW 830 (BOM)

Mahendra Kumar Nandlal Patel and Ashwin Mahendra Kumar Patel v. Samir Mahendra Shah

2025-07-01

SOMASEKHAR SUNDARESAN

body2025
JUDGMENT : SOMASEKHAR SUNDARESAN, J. 1. This Petition is an Appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (“the Act”) to an order dated May 17, 2025 passed under Section 17 of the Act (“Impugned Order”). It is the case of the Petitioners that they had been made partners of Alexis Hospitality LLP, Respondent No. 5 (“Alexis”) with a 20% share upon contribution of land until then owned by them, on which a building was constructed and is currently being used as a hotel which is the business of the LLP. 2. It is common ground that the Petitioners were not meant to manage the LLP and they were not the “designated partners” of Alexis. The disputes and differences between the parties were referred to the Learned Arbitral Tribunal, which was presented with an application under Section 17 of the Act essentially seeking an urgent intervention into expulsion of the Petitioners from the LLP. By the time of such application, the Petitioners' interests in the LLP were in the region of 6%. 3. The prayers in the Section 17 Application primarily relate to the expulsion of the Petitioners from membership of LLP, but also seek true and fair rendition of the affairs of the LLP from the date of formation of the LLP until the date of the Application in the Section 17 of the Act. There is also a prayer asking for the LLP to be restrained from disposing of and alienating or creating any third-party rights in the assets of the LLP in any manner whatsoever. 4. By a detailed and reasoned order, the Learned Arbitral Tribunal has dealt with the contentions of the parties and has arrived at what in the opinion of the Learned Arbitral Tribunal, constituted a fair and balance pro tem arrangement pending resolution of disputes. The Arbitral Tribunal has explicitly noticed the law involved and the provisions of contract governing expulsion of a partner from the LLP and has conclusively found that the Petitioners were given no opportunity to explain why their conduct was allegedly prejudicial to the interest of the LLP warranting their expulsion from the LLP. No explanation had been called for from the Petitioners. No hearing was envisaged and no formal meetings were held in this regard. No explanation had been called for from the Petitioners. No hearing was envisaged and no formal meetings were held in this regard. Consequently, the Learned Arbitral Tribunal has returned a strong prima facie case in favour of the Petitioners as regards their expulsion from the LLP. 5. However, the Learned Arbitral Tribunal has equally considered what formulation of interlocutory reliefs would be appropriate, and has returned a finding that the Petitioners deserve to be protected in terms of their interests in the LLP. Towards this end, the Learned Arbitral Tribunal has prohibited the LLP from inducting any new partner into the LLP. In other words, the potential 6% share of the Petitioners is protected by this interlocutory order and the Learned Arbitral Tribunal has specifically stated that if any wrong is held to have been committed against the Petitioners that would always be capable of being reversed or cured or compensated for at the end of the trial, if the Petitioners were to succeed. 6. The Learned Arbitral Tribunal also took into account the fact that the Petitioners were not actively involved at the stage of development of the project, nor are they actively involved in the running of the hotel business. Consequently, forming a view that bringing the Petitioners back as members of the LLP as a mandatory relief would serve no useful purpose, the Learned Arbitral has introduced a standstill on the ownership structure of the LLP. 7. A careful reading of the Impugned Order would indicate that the aforesaid position is an eminently plausible view. Unless the view taken by the Learned Arbitral Tribunal is ex facie implausible, or patently perverse, it would not be appropriate for the Court exercising jurisdiction under Section 37 of the Act to interfere with the arrangement merely because another view would have been possible or other elements of relief could be imposed. 8. In these circumstances, I have given my careful consideration to the matrix of facts involved. Considering that the Petitioners were 6% owners prior to their expulsion, statutorily they did not have any serious governance rights in the running of the business of the LLP. The capital structure of the LLP stands frozen by the Learned Arbitral Tribunal, and this would, in fact, prevent the LLP from making any equity dilutions or lateral inductions into the partnership of the LLP. The capital structure of the LLP stands frozen by the Learned Arbitral Tribunal, and this would, in fact, prevent the LLP from making any equity dilutions or lateral inductions into the partnership of the LLP. The only two prayers that are found in the Section of 17 Application and have not been granted in the Impugned Order, are a relief in respect of giving a true and faithful account of all the affairs of the LLP from inception till date, and a prohibition on any alienation or creation of third party rights in the assets of the LLP. The grievance of the Petitioners is that without appropriate consideration of these two prayers, the Section 17 Application itself stands disposed of, and to that extent, the Impugned Order calls for interference from this Court. Learned Counsel for the Petitioner presses hard for the suspension on any creation of third party rights or other alienation of the assets of the LLP. 9. An LLP is a body corporate with limited liability and an independent legal existence unlike a normal partnership firm which has a legal personality identical to that of its partners. Being a body corporate, the LLP is an artificial juridical person and the conduct of the affairs of the LLP is a matter of such independent body corporate’s own right distinct from the rights of its partners. The assets of the LLP are not the assets of the partners - much akin to well-known trite law in relation to ownership of assets of a company and rights of the shareholder over assets of the company. Consequently, it would be impossible to consider any reliefs about prevention of the LLP from alienating any assets, particularly considering the nature of the reliefs sought under the Section 17 Application. 10. I am also mindful of the fact that the Petitioners being 6% owners, the decisions taken on behalf of the LLP by 94% owners would not reasonably be expected to erode value in a manner targeted to hurt the 6% owner because the owners of a substantial majority would have to hurt their own interests with a view to inflict the injury on the Petitioners. 11. 11. As regards the right to information, to my mind, it would be a corollary that if the interests of the Petitioners were intended to be protected by creating a standstill arrangement over the capital structure of the LLP and to ensure that no new partner is inducted, it would follow that what was intended to be protected by the Learned Arbitral Tribunal was all attendant rights and the benefits of partnership for which such arrangement was made. Learned Counsel for the Respondent submits that the Petitioners did not even press for this relief at the stage of the hearing of the Section 17 Application. He would point to the contents of the Impugned Order to show what was pressed. This is contested on behalf of the Petitioner. 12. Since, the Interim Application itself stands disposed of, the Arbitral Tribunal has not had occasion to deal with the facet of what nature of information may be secured for the LLP to ensure that the Petitioners have reasonable access to it. Such relief is but a benefit incidental to the protection granted to the Petitioners. What rights to information the Petitioner enjoys would be a matter of the LLP Agreement and any statutory disclosures available under the law. If these have been denied in the past, the attention of the Learned Arbitral Tribunal ought to have been drawn to specific instances of violation of such rights in order to enable appropriate consideration of the same. 13. In these circumstances, while disposing of this Petition without any intervention with the Impugned Order, liberty is granted to the Petitioners to apply to the Learned Arbitral Tribunal to consider provision of audited or un- audited financial statements that would have been available to the Petitioners during their tenure as partners but for their expulsion. 14. Since the Respondents have not put the Petitioners to any notice as to how the Petitioners’ continuance as a Partner would be prejudicial to the LLP, I see no problem in permitting the Petitioner to make out a case for a right to access to information, to request the Learned Arbitral Tribunal to consider this prayer specifically. To my mind, this is actually a facet that could have been taken up by an application to speak to the minutes of the impugned order before the Arbitral Tribunal rather than filing an appeal. To my mind, this is actually a facet that could have been taken up by an application to speak to the minutes of the impugned order before the Arbitral Tribunal rather than filing an appeal. However, now that the appeal is before me, it would be appropriate to enable the Petitioners to approach the Arbitral Tribunal to make out a specific case as to what their entitlements to information are as a 6% owner of the LLP and what access to information that the Petitioners ought to have as a protectee of the 6% ownership for which the standstill arrangement has been directed in the impugned order. 15. I am mindful of the objection from the Respondent, namely, that the Petitioners did not press for these rights to information when the Section 17 Application had been argued before the Learned Arbitral Tribunal. This is controverted on behalf of the Petitioner. It is the Arbitral Tribunal, which would be best placed to deal with this controversy too, since it is the Arbitral Tribunal that heard the parties. It is not for this Court to decide which of the two versions of what transpired in the arbitral proceedings is more believable. The Impugned Order speaks for itself and does not indicate that the right to information was pressed. Be that as it may, since such right is incidental and may be relevant to the limited protection already granted, the Petitioner is permitted to make out a case based on entitlements under the LLP Agreement and in law to make such an application to the Learned Arbitral Tribunal. 16. The Learned Arbitral Tribunal may make appropriate arrangements for access to such information to be granted to the Petitioners, based on entitlements enjoyed by the Petitioner or if the Learned Arbitral Tribunal in its wisdom believes any such measure is necessary to better perfect or make the protection already afforded more meaningful and wholesome. 17. With the aforesaid observations, this Petition is finally disposed of. 18. All actions required to be taken pursuant to this order, shall be taken upon receipt of a downloaded copy as available on this Court’s website.