Sonal Tarun Dedhia vs Hemang Harilal Dedhia And 2 Ors on 19 June, 2019
Bombay High Court
Sonal Tarun Dedhia vs Hemang Harilal Dedhia And 2 Ors on 19 June, 2019
Bench: G. S. Kulkarni
This Order is modified/corrected by Speaking to Minutes Order dated 26/06/2019
pvr 1 carbpl263-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION (LODG) NO.263 OF 2019
Sonal Tarun Dedhia. …Petitioner
Versus
1.Hemang Harilal Dedhia & Ors. …Respondents
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Mr.Karl Tamboly with Devashish Jagirdar & Neel Kothari I/b. Jayakar &
Partners, for the Petitioner.
Mr.Narendra Dubey, for Respondent nos.1 to 3.
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CORAM : G.S. KULKARNI, J.
DATE : 19 June 2019
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P.C.
- Heard Mr.Tamboly, learned Counsel for the petitioner and Mr.Dubey, learned Counsel for respondent nos. 1 to 3.
- This is a petition filed under Section 9 of the Arbitration and Conciliation Act,1996 (for short ‘the Act’) whereby the petitioner has prayed for the following interim reliefs, pending the arbitral proceedings:-
“(a) This Hon’ble Court be pleased to pass an order in the nature of a permanent injunction restraining the Respondent No.1 from conducting any business/activities pertaining to the business of the Partnership Firm or in any manner till the completion of the arbitral proceedings pending before the Ld.Tribunal;
(b) This Hon’ble Court be pleased to pass an order in the nature of a permanent injunction restraining the functioning and This Order is modified/corrected by Speaking to Minutes Order dated 26/06/2019 pvr 2 carbpl263-19.doc operation of the Sole Proprietary firm by the Respondent No.1/Respondent no.3/their agents/representatives/heirs/associates in the name of the Respondent
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Sonal Tarun Dedhia vs Hemang Harilal Dedhia And 2 Ors on 19 June, 2019
No.3;
- This Hon’ble Court be pleased to pass an order restraining the Respondent Nos.1 and 3, their agents, heirs, representatives or any other persons claiming rights through the Respondent Nos.1 or 3 be restrained from creating any third party rights/title/encumbrances of any nature whatsoever in respect of the Office Premises/packing address and the movable and/or immovable properties belonging to the Sole Proprietary Concern in the name of the Respondent No.3.
- This Hon’ble Court be pleased to direct the Respondent No.1 to provide a complete disclosure on affidavit of the GST Returns filed by the Partnership Firm bearing GST No.”27AAGFM0897F1Z3″;
- This Hon’ble Court be pleased to direct the Respondent No.3 to provide a complete disclosure on a f f ida v i t of t he GST R etur n s fil e d by th e Sole Proprietary Concern b e aring GST No.”27ABUPN1081B1ZN” in the name of the Respondent No.3;
- This Hon’ble Court be pleased to direct the Respondent No.1 to provide a complete disclosure on affidavit of the Invoices raised on the letterhead of the Partnership Firm bearing GST No. “27AAGFM0897F1Z3” ( of the Partnership Firm) and the payments received by the Partnership Firm with respect to all the said Invoices since the inception of the Sole Proprietary Concern of the Respondent No.3;
- This Hon’ble Court be pleased to direct the Respondent No.1 and/or the Respondent No.3 to provide a complete disclosure on affidavit of the Invoices raised on the letterhead of the Partnership Firm bearing GST no. “27ABUPN1081B1ZN” and the payments received with respect to all the said invoices;
- This Hon’ble Court be pleased to direct the Respondent No.1 and/or the Respondent No.3 to disclose on affidavit, all the accounts of the Sole Proprietary Concern in the name of the Respondent No.3 since its inception till date;
- In the alternative to prayer (a), this Hon’ble Court be pleased to pass an order in the nature of a temporary injunction restraining the Respondent no.1 from conducting any business/activities pertaining to the business of the Partnership This Order is modified/corrected by Speaking to Minutes Order dated 26/06/2019 pvr 3 carbpl263-19.doc Firm or the Sole Proprietary Concern of the Respondent no.3 or in any manner till the completion of the arbitral proceedings pending before the Ld.Tribunal;
- Pending the hearing and final disposal of the arbitral proceedings, this Hon’ble Court be pleased to cancel the GST Registration of the Sole Proprietary Concern in the name of the Respondent no.3.”
3. The parties are already before the arbitral tribunal and the learned Arbitrator is seized of the matter to adjudicate the dispute between the parties. This petition has been filed against the principal parties and a third party namely respondent no.3 who is wife of respondent no.1(partner of respondent no.2) who is stated to be dealing with the closed partnership business.
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Sonal Tarun Dedhia vs Hemang Harilal Dedhia And 2 Ors on 19 June, 2019
4. The concern of the petitioner is that the business of respondent no.2-partnership firm M/s.Momay Laxmi Agencies where the petitioner and respondent no.1 are the partners, although has stopped from 31 March 2018, Respondent no.1 is nonetheless undertaking the business through his wife – respondent no.3-Dhrutii Hemang Dedhia. To support this contention, learned Counsel for the petitioner has drawn my attention to a copy of the tax invoice/tax memo (Exhibit G, page 61 of the paperbook) which clearly indicates that the name of the firm is being used as also with addition of stating “Formerly: Tarunkumar Devraj and Co.”
This Order is modified/corrected by Speaking to Minutes Order dated 26/06/2019 pvr 4 carbpl263-19.doc which was the erstwhile name of respondent no.2-firm. It is the contention of the petitioner that on one hand before the arbitral tribunal respondent no.1 had taken a position that the business of the firm as stopped on 31 March 2018, however in this surreptitious manner respondent no.1 is undertaking the business of the firm.
5. On 4.4.2019, this Court passed the following order on this petition:-
- Heard learned counsel for the petitioner and learned counsel for the respondents.
- The parties are already before a sole Arbitrator, who is adjudicating the disputes
and differences between the parties as arisen under the partnership deed dated 8 th February, 2013. The Petitioner has also filed an application under Section 17 of the Arbitration and Conciliation Act, 1996 (for short,”ACA”), before the learned sole Arbitrator, which came to be adjudicated by the sole arbitrator, by an order dated 19th February, 2019.
3. Learned counsel for the petitioner has drawn my attention to the averments as made in paragraph Nos 2 and 3 of the affidavit-in-reply filed by respondent No.1 before the arbitral tribunal to contend that the business of partnership firm has stopped. Learned counsel for the petitioner has also drawn my attention to tax invoice dated 9.10.2018, (Exhibit “G” at page 61 of the paper book), issued by respondent No.2 , and another tax invoice dated 8.3.2019 (Exhibit “”J” page No.70 of the paper book), issued at the instance of respondent No.2. Referring to these invoices, the contention as urged on behalf of the petitioner is that the statement as made by respondent No.1 before the learned sole arbitrator that the business of the partnership firm is stopped is a false statement and in fact the business of partnership firm is being conducted from a second address at Maruti compound, village Kasheli, Taluka:
Bhiwandi, District:Thane as indicated by these invoices. It is his submission that this petition under Section 9 of the ACA was required to be filed as respondent No.3, who is the wife of respondent No.1, is running the business of firm is using the name of respondent No.2 partnership, from the said Maruti compound, village Kasheli. According to the learned counsel for the petitioner the GST Number as quoted in both the Invoices is registered in the name of respondent No.3. The contention of the petitioner is that respondent No.1 has played a fraud This Order is modified/corrected by
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Sonal Tarun Dedhia vs Hemang Harilal Dedhia And 2 Ors on 19 June, 2019
Speaking to Minutes Order dated 26/06/2019 pvr 5 carbpl263-19.doc and thus, the reliefs as prayed in this petition are required to be granted.
- The learned counsel for respondent Nos. 1 & 3 seeks time to take instructions.
- Considering these facts, it would be in the interest of justice that in the meantime, respondent No.1 is directed to place on record a disclosure on affidavit, in regard to the business undertaken in the name of respondent No.2 under the GST No.27AAGFM0897F1Z3. Respondent No.3 is also directed to place on record the GST Returns in respect of GST No.27ABUPN1081B1ZN. Respondent No.1 is also directed to clarify the statement as made by him in paragraph Nos. 2 & 3 of the affidavit filed before the arbitral tribunal as noted above, as to the exact date and details from which the business of the partnership had been stopped.
- Stand over to 11.04.2019. High on board.”
6. In pursuance of the above order, a reply affidavit is placed on record on behalf of respondent no.1 and respondent no.3. A perusal of the affidavit would also indicate that the disclosures are made by respondent nos.1 and 3 which would also prima facie supports the contention as urged on behalf of the petitioner that in fact respondent no.3 is using the name of the partnership firm namely “M/s.Momay Laxmi Agencies” and is conducting the same business as was conducted by respondent no.3. This is clear noting the several averments made in reply affidavit as also the documents annexed to the reply affidavit which includes GST returns for the period between December 2017 to February 2018-2019. It also appears to be quite clear from the GST returns that the business of respondent no.2 has substantially increased after the business of This Order is modified/corrected by Speaking to Minutes Order dated 26/06/2019 pvr 6 carbpl263-19.doc partnership of respondent no.2 is stopped. This more particularly when the disputes between the partners are already before the arbitral tribunal.
Respondent no.1 is exploiting the situation in this fashion.
- Considering the material as placed on record, there prima facie appears to be substance in the contentions as urged on behalf of the petitioner. The arbitral proceedings are already pending between the petitioner and respondent no.1. No useful purpose would be served if this petition is kept pending.
- Considering these facts and circumstances of the case. Petitioner has made out a prima facie case, the balance of convenience is also in favour of the petitioner. It will be thus in the interest of justice that the petitioner is granted interim reliefs pending the arbitral proceedings.
- Accordingly, till the disposal of the arbitral proceedings, there shall be interim reliefs in terms of prayer clauses (b) and (i) which read thus:-
“(b) This Hon’ble Court be pleased to pass an order in the nature of a permanent
injunction restraining the functioning and operation of the Sole Proprietary firm by
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Sonal Tarun Dedhia vs Hemang Harilal Dedhia And 2 Ors on 19 June, 2019
the Respondent No.1/Respondent No.3/ their agents/ representatives/ heirs/ associates in the nature of the Respondent no.3.
(i) In the alternative to prayer (a), this Hon’ble Court be This Order is modified/corrected by Speaking to Minutes Order dated 26/06/2019 pvr 7 carbpl263-19.doc pleased to pass an order in the nature of a temporary injunction restraining the Respondent no.1 from conducting any business/activities pertaining to the business of the Partnership Firm or the Sole Proprietary Concern of the Respondent no.3 or in any manner till the completion of the arbitral proceedings pending before the Ld.Tribunal;
- The petition is disposed of in the above terms. No costs.
- Needless to observe that the arbitral tribunal shall endeavour to dispose of the arbitral proceedings as expeditiously as possible and preferably within six months from today.
(G.S.Kulkarni, J.)
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