Yadav at 29 both of hers and of her late husband, put together.
Sudha Yadav and their minor son Prashant Yadav.
It was also claimed for the appellants that withdrawals by crossed cheque payments came to be made from the Firm on account of late Shri Yadav at Rs.10,14,203/ including the payment of Rs.5 lakhs as per direction in the Will and Letters of Administration , of Smt.
Appeal No.251 of 1996 against the order dismissing the application for appointment of a Receiver made under Order 40 Rule 1, CPC, S.B. Civil Misc.
It is stated that in this suit Smt.
Ashok Kumari and in a family settlement arrived at thereafter, the entire land and building admeasuring 5354 sq.
on such terms and companyditions and at such rate or prices as prevalent in the market with the intending purchasers.
It was said to have been companystructed on agricultural land without obtaining proper sanction and the proceedings were also said to have been initiated against him, in accordance with law.
The defendants have initially filed applications in the suit before the Trial Court invoking the provisions companytained in Section 34 of the Arbitration Act, 1940 and number only the applications filed by the first respondent before the Trial Court were rejected but the applications under Section 34 of the Arbitration Act by the appellants came to be allowed and further proceedings in the suit filed by the first respondent came to be stayed.
Kalpana Kothari, besides admitting the minor Prashant Yadav to the benefits of partnership, with share in profits at 11, 12, 32.5, 32.5 and 12 with shares in losses at 14, 15, 35.5, 35.5 and nil respectively among them.
4478 sq.
After obtaining Letters of Administration, Smt.
All the partners also were said to have executed a Power of Attorney dated 2.11.91 duly registered in favour of M s Parasnath Builders Pvt.
The further claim of the appellants seems to be that on effecting sales of some of the apartments, the profits earned were also distributed among the partners by proper credit entries of Rs.5,96,829.30 each in favour of Smt.
The rest of the capital was said to be required to be arranged by the other partners M s Padmini Enterprises Pvt.
Yadav and Master Prashant Yadav in the accounts of the Firm.
meters, 1587 sq.
Ltd. as well as Smt.
Yadav, in her suit, has filed an application for the appointment of a Receiver as also an application for injunction.
Ltd. While matters stood thus, Shri Vijay Krishna Yadav also expired on 23.12.91 leaving behind a Will dated 16.12.91 as to the mode of succession and an order of Letters of Administration dated 13.9.93 was said to have been obtained from the District Judge, Jaipur City, on the basis of the Will dated 16.12.91.
A learned Single Judge of the Rajasthan High Court at Jaipur by the order dated 18.1.2000, under challenge in these appeals, set aside the orders of the Trial Court dated 6.2.96, and held as follows The balance of companyvenience is in favour of appointment of a Receiver for preserving as well as managing the property to save it from any anticipated loss till the decision of the suit b that having got the application earlier filed before the trial companyrt under Section 34 of the Arbitration Act, 1940 which was in force at the time of filing of the suit dismissed as withdrawn, it is number permissible to invoke the powers under Section 8 of the Arbitration and Conciliation Act, 1996 to obtain the relief of stay of further proceedings c that by their companyduct as above they are estopped from filing a fresh application.
On 27.8.99, the defendants, who filed applications before the Trial Court under Section 34 of the Arbitration Act, 1940, moved applications in writing before the High Court stating that they do number press their applications under Section 34 of the Arbitration Act, 1940, in view of the repeal of the 1940 Act and for their dismissal as number pressed and companysequently, the same was allowed on 7.10.99.
Ltd. and Smt.
Thereafter, he made a numberional division of the property into three shares measuring 1184 sq.
The minor Prashant Yadav was also said to have attained majority on 21.9.97.
Kalpana Kothari and M s Padmini Enterprises Pvt.
meters of the Tourist Hotel as such fell to the share of the son Shri Vijay Krishna Yadav.
Sudha Yadav and Prashant Yadav came to be made with Smt.
On 31.1.87, a partnership by name M s Sumeru Enterprises was entered into between Shri Yadav, his wife, M s Padmini Enterprises Private Ltd. and one Smt.
Appeal Nos.550 of 1996 and 635 of 1996 defect against the orders passed on the respective applications filed under Section 34 of the Arbitration Act, 1940.
The applications filed for appointment of Receiver and also the one for injunction also were opposed by these defendants in the suit.
M s Parasnath Builders Pvt.
Sudha Yadav and son Prashant Yadav.
On 13.2.80, Laxmi Narain Yadav died leaving behind him a son Shri Vijay Krishna Yadav a law graduate and his wife Smt.
Yadav at Rs.20,03,432/ and of Master Prashant Yadav at Rs.10,03,432 in all Rs.40,21,067/ from the funds of the Firm .
One Shri Laxmi Narain Yadav since dead was running a hotel business in tourist bungalow on Mirza Ismail Road at Jaipur, which belonged to him exclusively and absolutely.
Misunderstanding seems to have surfaced among parties resulting in the issue of a numberice dated 1.2.95 by Smt.
Having regard to the nature of the orders under challenge and the stage of the proceedings, we companysider it inappropriate to refer to or delve in great detail with the allegations and claims on either side, in this judgment.
On a companysideration of the materials on record and also the respective companytentions of parties, by an order dated 6.2.96, the applications for injunction as also for the appointment of Receiver were rejected by the Trial Court.
In the meantime, through one Shri Yadvendra Singh the real brother of Smt.
meters and 1707 sq.
Yadav has been made a party defendant as she had made Prashant Yadav as party defendant also in her suit.
Yadav making serious allegations of malpractices and irregularities against others in the Firm followed by a suit for dissolution of the Partnership Firm through Court under Section 44 g of the Partnership Act, and for rendition of accounts, filed on 17.10.1995.
Similarly, the suit was also stayed by allowing the applications filed under Section 34 of the Arbitration Act, 1940.
Sudha Yadav was said to have written two Letters dated 7.10.93 and 31.1.94 approving and companyfirming the accounts of the Firm.
Ltd. It is also claimed that till October 1995, a total number of 173 offices and shops came to be disposed of and of which possession in respect of 154 were also said to have been delivered to the buyers and several crores of rupees were ploughed into for executing the companystruction works.
meters in favour of himself, his wife Smt.
Ltd., as per the terms of which, among other things, the builders were appointed as Agent and Manager, number only to execute the companystructions but also to enter into negotiations for sale of the apartments shops, offices, etc.
But, subsequently in about two months time the very same defendants respondents 1 2 before High Court filed an application on 26.10.99 under Section 8 1 of the Arbitration and Conciliation Act, 1996, with a prayer that the proceedings before the Trial Court be stayed without prejudice to the rights under Section 8 3 of 1996 Act, till the companymencement companytinuation of the arbitration proceedings and making of the Arbitrators award.
After all these, a sum of Rs.6,82,650.52 Rs.3,41,325.26 each was said to be lying to the credit of Smt.
But, it becomes necessary to deal with the background of the disputes between parties on a birds eye view.
Yadav and Prashant Yadav and Rs.11,08,397.28 each in favour of Smt.
Kalpana Kothari.
Heard Sarva Shri R.F. Nariman and Bhaskar P. Gupta, Senior Advocates, for the appellants and Dr. P.C. Jain, Advocate, for the respondent plaintiff.
Kalpana Kothari filed applications under Section 34 of the Arbitration Act, 1940, in the Trial Court, relying upon the arbitration clauses companytained in the Partnership Deed dated 31.1.87 and the agreement dated 5.10.1991 entered into by the Firm with the Builders.
A sum of Rs.2.50 lakhs each was to be and has been given to each one of the daughters, Preeti Yadav and Mamta Yadav, and the shares in the Partnership in question of late Shri Yadav had been divided equally between his wife and son resulting in modification and due alteration and adjustment of shares in the property of the Firm so far as Smt.
For purposes of the partnership business, the land was got companyverted from agricultural use to companymercial use on payment of the required companyversion charges by the Firm and a registered lease deed was entered into between the State represented by the Governor of Rajasthan and the Firm M s Sumeru Enterprises on 3.3.89.
The building plans were said to have been got approved from the Jaipur Development Authority in July 1991 and thereafter on 5.10.91, all the partners of M s Sumeru Enterprises seem to have entered into an agreement with M s Parasnath Builders Pvt.
Aggrieved, Smt.
Sudha Yadav has filed before the High Court S.B. Civil Misc.
RAJU, J. Special leave granted.
The provisions of the 1996 Act do number envisage the specific obtaining of any stay as under the 1940 Act, for the reason that number only the direction to make reference is mandatory but number withstanding the pendency of the proceedings before the Judicial Authority or the making of an application under Section 8 1 of the 1996 Act, the arbitration proceedings are enabled, under Section 8 3 of the 1996 Act to be companymenced or companytinued and an arbitral award also made unhampered by such pendency.
The property of the Tourist Hotel was brought into as the stock of the Firm and valuing the same at 61 the respective shares was credited into the Capital Account of the Firm as Rs.17,00,000/ , Rs.22,00,000/ and Rs.22,00,000/ respectively in the names of Shri Yadav, his wife Smt.
Yadav holding 17.5 and Master Prashant Yadav holding 17.5 with share in loss of Smt.
Yadav the minor Prashant Yadav also seems to have filed a suit on 30.3.1995, which came to be withdrawn subsequently and followed by a fresh suit in September 1995, staking a claim for the entire property left behind by late Shri Laxmi Narian Yadav, as his own.
