1 2025:CGHC:5102 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ARBR No. 17 of 2022 • Mohd. Arif Rokadia S/o Mohd. Daud Rokadia Aged About 46 Years Partner, M/s Ayasha Cold Storage, Presently Residing At House No. 48, Aakash Ganga Colony, Rudri Road, District Dhamtari, Chhattisgarh, Pin- 493773 ... Applicant versus 1. Mohd. Salim Rokadia S/o Mohd. Daud Rokadia Aged About 49 Years Partner Of M/s Ayasha Cold Storage, R/o Salewar Para, Near Old Haddi Godam, Dhamtari, Tehsil And District Dhamtari, Chhattisgarh 2. Smt. Shahnaz Bano W/o Mohd. Salim Rokadia Aged About 45 Years Partner Of M/s Ayasha Cold Storage, R/o Salewar Para, Near Old Haddi Godam, Dhamtari, Tehsil And District Dhamtari, Chhattisgarh 3. Smt. Ayasha Bano W/o Mohd. Daud Rokadia Aged About 67 Years Partner Of M/s Ayasha Cold Storage, R/o Salewar Para, Near Old Haddi Godam, Dhamtari, Tehsil And District Dhamtari, Chhattisgarh ... Respondents For Applicant : Mr. Pankaj Singh, Advocate. For Respondents : Mr. Vivek Chopda, Advocate. Hon’ble Mr. Ramesh Sinha, Chief Justice Order on Board 27.01.2025 1. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.01.29 15:50:41 +0530 2 2. The facts, in brief, as projected by the applicant are that the applicant happens to be the joint owner and operator of M/s Ayesha Cold Storage along with the respondent Nos. 1, 2 and 3. The Cold Storage was jointly operated by all the partners and all the profit was shared by all of the parties proportionately. The said property is situated in village Chittod, District – Balod, Chhattisgarh. The parties mentioned above entered into a partnership agreement dated 18.07.2012 for the purpose of operating M/s Ayasha Cold Storage. The said firm was engaged in providing storage facilities to the Agro, Forestry, Horticulture, fertilizers, pesticides, agency- based industries and merchants. In the partnership deed, the parties had also mentioned the remuneration which was to be drawn by each of the partners. The partnership deed also mentioned in the terms of the agreement, any party desirous of retiring from the partnership shall have to give an advance notice of three months in writing to the other parties. Subsequently, when the applicant went to the Dhamtari Branch of the United Bank of India on 15.10.2019 for inquiring about the statement of accounts of the said cold storage from the year 2012-13 to 2019-20, to the utter shock and dismay of the applicant, he was informed that he cannot be provided with the statement of accounts of the said cold storage as he was no longer a partner of the said firm as per an alleged amendment to the deed of partnership dated 30.08.2016, the applicant has been removed as a partner from the said firm on account of an alleged resignation submitted by the applicant as per which, without any substantial reason, he has wished to retire from 22.08.2016. It is submitted that the signatures of the applicant on the said resignation is false and fabricated as the applicant has never signed any retirement/resignation letter to waive his partnership rights over M/s Ayasha Cold Storage. Also, since 2013 respondents have deprived the applicant of his share of profit or any salary as mentioned in the deed of 3 partnership. It is evident that the entire act of fabrication has been undertaken by respondents to act in breach of the deed of partnership dated 18.07.2012. Thus, the applicant states that disputes have arisen between the parties and further repeated attempts have been made to amicably settle the disputes regarding the non-payment of amounts due to the applicant. Asserting aforesaid, the applicant approached this Hon'ble Court vide Arbitration Request No. 5/2020 which dismissed by this Hon'ble Court vide order dated 06.05.2022 thereby observing that since there being no demand being made in terms of Clause 15 of the partnership deed invoking arbitration clause, therefore liberty be granted to make a demand in accordance with law thereby invoking clause 15 of the partnership deed. Reserving the aforesaid liberty, the Hon'ble dismissed the application so preferred by the present applicant. After such liberty being reserved in favor of the applicant, the applicant invoking the same preferred a demand notice addressed to the respondent in terms of clause 15 of the partnership deed. The applicant sent the afore-stated demand notice in terms of clause 15 of the deed to the respondents through his counsel, wherein, a time bound request (within 30 days) was made to respondent to appoint an arbitrator with mutual consent and in lieu thereof requested them to suggest names of the individuals for appointment as an independent and impartial arbitrator as per the terms of the deed of partnership for resolution of disputes via mode of arbitration. The respondent in turn replied to the notice so addressed by the applicant herein, and vide the said reply dated 13.06.2022 the present respondent vehemently and out-rightly denied existence of any dispute. Pertinent it is for the purposes of the present application, that the respondent vide the reply so addressed to the applicant did not reverted qua the appointment of the arbitrator and thereby defying the notion of appointment of arbitrator with the consent of the parties herein. Based on 4 the afore-said premise it is apparent that the respondent is not agreeable to appointment of arbitrator by mutual consent, meaning thereby parties are not able to appoint an arbitrator mutually with their consent and thus is before this Hon'ble Court for its kind and benevolent indulgence seeking appointment of an independent and impartial arbitrator for arbitrating disputes between the parties herein in terms of the partnership deed dated 18.07.2012. Therefore, the present application is being filed by the applicant for the appointment of an Arbitrator under Section 11 (6) of Arbitration and Conciliation Act, 1996, read with Clause 15 of partnership deed dated 18.07.2012 entered into between the applicant and respondent for an order from this Hon'ble Court for appointing an arbitrator. Hence, the present application. 3. Mr. Pankaj Singh, learned counsel for the applicant submits that the applicant has been removed as a partner from the said partnership firm on account of an alleged resignation submitted by the applicant as per which, without any substantial reason, he has wished to retire from 22.08.2016. Contrary to that, the applicant was shown to resign from the said partnership deed by forging the sign of the applicant by the respondents in the relevant documents with respect to alleged resignation. The said allegation of forgery is being proved by the opinion of the forensic expert who has opined that the signatures mentioned in the documents relating to the resignation has different authorship. The applicant in light of the above facts and circumstances, cannot be considered to be a non-partner of the said firm. As per the partnership deed, the share of profit of 20% has not been given since the year 2013 which is an utter violation of the deed of partnership. The Petitioner claims the entire share of profit which was ought to be given to him in lieu of the terms of the deed of partnership entered with the respondents. However, by illegally removing the applicant from the 5 partnership, the respondents are dishonestly depriving the applicant from his legitimate share of profit. The applicant was kept in dark and was not provided with the salary as agreed by the signing the said partnership deed. As per the records maintained by Credit Information Bureau of India Ltd., the name of the applicant is still shown as a partner in the records of CIBIL. The notice has been served to the respondents so as to resolve the disputes by referring the matter before an independent arbitrator appointed mutually by the applicant as well as the respondents but the same was not considered by the respondents which has consequently resulted in a situation wherein it can be said that the parties to the present application are not able to appoint an independent arbitrator by mutual consent and therefore this is a fit case for benevolent indulgence of this Hon'ble Court by appointing a fit and independent Arbitrator to resolve the existing disputes between the parties. 4. Mr. Vivek Chopda, appearing for the respondents relying on the return filed on behalf of respondents opposes this application, however, he submits that the respondents will have no objection if any Arbitrator is appointed by this Hon’ble Court for resolving the dispute that has arisen between the parties. Mr. Chopda again reiterates the grounds for dismissal of this arbitration application as was raised during the argument when the matter was disposed of on 14.07.2023. 5. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. On the last date of hearing i.e. on 14.10.2024, this Court had directed that this case to be listed after disposal of the review petition by the Hon’ble Apex Court, which was later on dismissed by the Hon’ble Supreme Court vide order dated 10.12.2024. 7. This arbitration request was earlier decided on 14.07.2023 and the matter 6 was dismissed holding the application to be time barred and further that the agreement was not properly stamped. Against the said order passed by this Court, the applicant had preferred an appeal being Civil Appeal No. 10056/2024 before the Hon’ble Apex Court, and the Hon’ble Apex Court, vide its order dated 02.09.2024 allowed the same and remanded the matter back to this Court with a direction to considering the same afresh and to pass appropriate orders after taking into consideration the latest decision of the Apex Court being Interplay Between Arbitration Agreements Under Arbitration and Conciliation Act, 1996 and Stamp Act, 1899, reported in 2023 SCC OnLine 1666 as well as in SBI General Insurance Co. Ltd. v. Krish Spinning reported in 2024 SCC OnLine 1754. Against the said decision, the respondent herein had filed a review petition before the Apex Court being Review Petition (Civil) Diary No. 45738/2024 which stood dismissed on 10.12.2024. Accordingly, the matter is being considered today by this Court. 8. In SBI General Insurance (supra), the Hon’ble Apex Court has observed that the scope of enquiry at the stage of appointment of arbitrator is limited to the scrutiny of prima facie existence of the arbitration agreement and nothing else and as such, the grounds raised by learned counsel for the respondent does not have any merit. 9. A query was put to learned counsel appearing for the parties as to whether they are agreeable for a common name who can be appointed as Arbitrator, learned counsel for the parties submitted that they would have no objection if any retired Judge of this High Court is appointed as the Sole Arbitrator. They further submit that Hon’ble Mr. Justice Gulam Minhajuddin who is a retired Judge of this High Court may be appointed as the Sole Arbitrator. 10. In view of the above consensus between the learned counsel for the parties, Hon’ble Mr. Justice Gulam Minhajuddin a retired Judge of this High 7 Court is appointed to act as the Sole Arbitrator to resolve the dispute involved in this arbitration request between the parties. 11. The Registry is directed to communicate this order to Hon’ble Mr. Justice Gulam Minhajuddin in the proper address. 12. The remuneration of the Arbitrator shall be settled with the mutual consent of the parties. 13. The arbitration request petition, accordingly, stands allowed. Sd/- (Ramesh Sinha) CHIEF JUSTICE Preeti