Mr. Prashant Vinod Vaghasiya vs Mr. Vivekanand Dhaneshwar Jha

CNR No : HCBM010274832026

comarp 37 of 2026 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL ARBITRATION PETITION NO.37 OF 2026
1. Mr. Prashant Vinod Vaghasiya
2. Mrs. Nirmala Vinod Vaghasiya ...Petitioners
Vs.
1. Mr. Vivekanand Dhaneshwar Jha
2. Mr. Akhtar Tassaduk Khan
3. Smt. Vidya Ashok Kakera
4. Smt. Surekha Suresh Narkhede ...Respondent
WITH
INTERIM APPLICATION (ST) NO. 29968 OF 2026
IN
COMMERCIAL ARBITRATION PETITION NO.37 OF 2026
M/S. Nitant Properties And
Developers Pvt Ltd Thr Its
Director Mr Raysaheb M Yadav
And Ramlaxman V ...Applicant
Vs.
Mr Vivekanand Dhaneshwar Jha ...Respondent
*
Mr. Anil D’Souza a/w. Ernest Advocate for the Petitioner.
Tuscano
Ms. Shaila R. Pandey for the Respondent No.1
Mr. Chetan Rathod i/b. Mr. Advocate for Respondent
Niraj K. Tripathi No.4
Mr. Arvindkumar Tiwari For the Intervenor-applicant
Digitally signed
by SEEMA
KSHITIJ
YELKAR
Date:
2026.11.05
15:56:43
+0530
SEEMA
KSHITIJ
YELKAR
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in IA(st) No. 29968/2026
Mr. Jitendra Singh Advocate for Respondent
Nos.2 and 3.
*
CORAM : S. M. MODAK, J.
rd
RESERVED ON : 23 OCTOBER 2026
th
PRONOUNCED ON : 04 NOVEMBER 2026.
JUDGMENT :-
1. By this petition, both the Petitioners are praying for appointment
of an Arbitrator as per the provisions of Section 11 (6) of the
Arbitration and Conciliation Act (hereinafter referred to as ‘1996 Act’).
Both the Petitioners claim to be the partners of Avighnaa Infra
Buildcon LLP. Both these Petitioners and Respondent-Vivekanand
were not the partners of said LLP at one and the same time. The
petition is opposed on behalf of the Respondent-Vivekanand on
various grounds. One is the notice under Section 21 of the said Act was
given only by the Petitioner No. 1-Prashant and not given by the
Petitioner No. 2 Nirmala. It is also opposed on the ground that
th
recently there is an agreement executed on 07 December 2025 in
between the Petitioner No. 1 and the Respondent and they have
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settled all the disputes and difference, as such there is no need to
appoint an arbitrator. The prayer is also opposed on the ground that as
th
per the Clause No. 33 of the agreement dated 15 October 2019, the
jurisdiction of the Court is Mumbai Court and as such the dispute
cannot be sent to arbitration.
2. This Court as per order dated 01.10.2026 has allowed two
interim applications i.e. Interim Application No. 7616 of 2026 and
Interim Application (ST) No. 28482 of 2026 and joined following
persons as Respondent Nos. 2, 3 and 4.
a) Mr. Akhtar Tassaduk Khan
b) Smt. Vidya Ashok Kakera
c) Smt. Surekha Suresh Narkhede
If this Court will decide to appoint an arbitrator, they have
agreed to participate in the arbitration and put forth their case.
Interim Application (ST) No. 29968 of 2026 is filed by M/s
Nishant Properties and Developers Pvt. Ltd. for impleadment. It
was on the basis of giving some financial assistance to
Vighnaharta Construction a partnership firm.
3. There are various agreements referred by the Petitioners as well
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as by Respondent-Vivekanand. The principle agreement is dated
15.10.2019. There are two partners. They are : One Trusha Vaghasiya,
who is not party to this petition and Second is Nirmala, who is
Petitioner No. 2. Subsequently, the Petitioner No. 1-Prashant was
added as party as per the agreement dated 25.02.2020. Subsequently,
there is further agreement dated 10.10.2020. Following are the changes
made as per the said agreement :
a) Nirmal and Trusha have retired.
b) Prashant continued as partner
c) Respondent-Vivekanand was added as partner.
4. Thereafter, also there are various agreements executed between
parties. They are as follows :-
a) an agreement dated 20.11.2021 in between Prashant-
Petitioner No. 1 and Akhtar Khan – Respondent no. 2
(page 85) wherein Respondent No. 2 is admitted as a
partner in Limited Liability Partnership.
b) Supplementary agreement dated 11.12.2024 wherein
Shankar Jha was admitted as a partner in Avighnaa LLP
alongwith original partner Nirmala and Prashant -
Petitioners. (page no. 515)
c) Supplementary agreement dated 07.12.2025 signed by the
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Petitioners, Respondent No. 1- Vivekanand and Shankar
Jha thereby amicably settling the dispute. (page no. 543)
d) There is partnership firm by name M/s Om Construction
wherein Smt. Vidya Kakera-Respondent No. 3 was partner
and it was merged with Vighnaharta construction and said
Vighnaharta Construction is merged into Avighnaa LLP on
08.11.2021.
e) Respondent No. 2 (Telstar Technologies Pvt. Limited)
became partner of Avighnaa LLP on 10.10.2020 as
mentioned above. Initially, Respondent No. 2 was partner
with Petitioner No. 1 as per Deed of partnership dated
14.06.2019 (page 599). It is in respect of property at Mira
Road and property at Navghar Road, Bhayandar. There was
Avighnaa LLP formed and later on there is change in
constitution of the LLP as mentioned above.
f) Respondent No. 1 – Vivekanand pleads that if matter is
sent to Arbitration, there should be inquiry into accounts
from 2008 starting from Vighnaharta Construction and
Om Construction (para 37 of Affidavit in reply)
g) Respondent No. 1 has also pleaded that dispute should not
be confined to accounts of LLP but it should also include
his removal and certain illegalities committed by Petitioner
No. 1.
h) Respondent No. 1 has also pleaded that disputes are settled
in view of execution of Agreement dated 07.12.2025.
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(Petitioners are disputing as both have not signed and there
are certain blank spaces and it is inchoate document) and
dispute is limited to implementation of said agreement
dated 07.12.2025.
i) There is registered development agreement dated
02.11.2020 in between owners of lands situated at village
Meere with M/s Avighnaa LLP (page no. 712)
j) Respondent No. 1 – Vivekanand was expected from
Avighnaa LLP. There is show cause notice issued on
22.05.2024. It was replied by Respondent No. 1 and there
is rejoinder. This is disputed by Respondent No. 1 and it is
also challenged before various forums.
5. Admittedly, there is no arbitration clause in any of the
agreements. But there is no dispute that they have formed limited
liability partnership and as such provisions of Limited Liability
Partnership Act, 2008 are applicable.
6. Learned Advocate Mr. D’Souza for the Petitioners relied upon
the provisions of the said Act and according to him, if there is no
provision for arbitration, as per the provisions of Section 23 (4) Entry
No. 14 of the First Schedule to the said Act, the dispute can be refereed
to arbitration. It is true apart from Avighnaa Infra, there is a reference
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of other entities namely Vighnaharta construction, Telstar
Technologies Pvt. Ltd., Om construction had come. So the issue is
“ whether dispute involving signatories to the respective agreements,
can be referred to arbitration ” or “ whether the dispute amongst the
persons who are not signatories to the agreements, can also be referred
to an arbitrator ”.
7. Learned Advocate Mr. D’Souza relied upon the following
judgments:-
1
a) Kartik Radia Vs. BDO India LLP and Anr.
b) Indus Mobile Distribution Private Limited Vs. Datawind
2
Innovations Private Limited and Others
3
c) SBI General Insurance Company Limited Vs. Krish Spinning
d) ASF Buildtech Private Limited Vs. Shampoorji Pallonji and
Company Private Limited
8. Whereas learned Advocate for the Respondent No. 1 relied upon
the following judgments ;-
4
a) M/s Young achievers Vs. IMS Learning Resources Pvt. Ltd.
b) Bangalore Electricity Supply Company Limited (Bescom) Vs.
5
E.S. Solar Power Private Limited and Others
1 2025 SCC Online Bom 445
2 2017 (7) SCC 678
3 (2024) 7 S.C.R. 840
4 (2013) 2 S.C.R. 252
5 (2021) 6 SCC 718
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9. It will be relevant to consider the provisions of Limited Liability
Partnership Act, 2008. Section 2 (1)(o) of the said Act meaning of
limited liability partnership agreement is given as :-
Section 2 (1) (o)
"limited liability partnership agreement" means any
written agreement between the partners of the limited
liability partnership or between the limited liability
partnership and its partners which determines the
mutual rights and duties of the partners and their rights
and duties in relation to that limited liability
partnership;”
10. It consists of either the agreement amongst partners of limited
liability partnership or it may consist of an agreement in between LLP
and its partners. Meaning of partners and designated partners are also
given in Section 2(1)(q) and in Section 2 (1)(j).
Section 2(1)(q)
"partner", in relation to a limited liability partnership,
means any person who becomes a partner in the limited
liability partnership in accordance with the limited liability
partnership agreement;
Section 2 (1)(j)
"designated partner" means any partner designated as such
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pursuant to section 7;”
11. As per Section 3 of the said Act, Limited Liability Partnership is
a body corporate and it has got separate existence from its partners.
There shall be atleast two partners of Limited Liability Partnership
(Section 6).
12. Limited Liability Partnership has to be incorporated with
Registrar with incorporation documents (Sections 11 and 12). After
registration Limited Liability Partnership gets legal existence. Sections
23, 27 and 28 deals with relationship of partners, extent of liability of
Limited Liability Partnership and extent of liability of partner. For
deciding present dispute, we are concerned with the provisions of
Section 23(4) of the said Act. It is reproduced below :-
Section 23(4)
“In the absence of agreement as to any matter, the mutual
rights and duties of the partners and the mutual rights
and duties of the limited liability partnership and the
partners shall be determined by the provisions relating to
that matter as are set out in the First Schedule”
13. So if there is no provision in the agreement then the issue has to
be decided as per the provisions of First Schedule. First schedule
contain 14 entries. It deals with the subject of sharing of profits,
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remuneration, the manner of taking decision amongst partners,
recording of decision in minutes, modalities if competing business is
carried on by any partner and so on. Entry No. 14 is relevant. It is
reproduced below ;
Entry No. 14 –
“All disputes between the partners arising out of the limited
liability partnership agreement which cannot be resolved in
terms of such agreement shall be referred for arbitration as per
the provisions of the Arbitration and Conciliation Act, 1996.”
14. If there is a dispute “ arising out of limited liability partnership
agreement ” and it cannot be decided “ in terms of the agreement ”, then
it shall be referred to arbitration as per provisions of Arbitration and
Conciliation Act, 1996. These twin conditions have to be satisfied.
Admittedly, Petitioner No. 1 and Respondent No. 1 were partners at
one time and Petitioner No. 1 and Petitioner No. 2 were also the
partners at other time with others. Respondent No. 1 is expelled which
is disputed by him.
15. It needs to be seen, if there is any provision in principal
agreement dated 15.10.2019 and other agreements for resolution of
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dispute. My attention is brought to Clause No. 33 of the agreement
dated 15.10.2019.
Clause No. 33 Jurisdiction
“This Agreement shall be governed by and construed under
the substantive Indian laws and jurisdiction of Mumbai
Court. ”
16. This clause is interpreted by the Hon’ble Supreme Court in case
of Indus Mobile Distribution Private Limited (supra) . Ms. Pandey
disputes applicability of said ratio. Admittedly, the Supreme Court was
not deciding a dispute involving the provisions of Limited Liability
Partnership Act. But it was plain commercial dispute. There was an
arbitration clause and jurisdiction clause also (para 2). The place of
seating of arbitration is mutually decided by the parties at Mumbai and
it is agreed that all disputes arising out of the agreement shall be subject
to exclusive jurisdiction of the Courts in Mumbai. Even when no cause
of action has arisen in Mumbai, parties have chosen the seat of the
arbitration will be at Mumbai. The reason is simple. Parties have agreed
that instead of regular Courts (having jurisdiction as per Civil
Procedure Code) disputes have to be referred to an arbitrator who will
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sit in Mumbai. Merely because “ dispute has to be resolved by an
arbitrator ” does not mean that further dispute will not occur. There are
occasions to seek interim measures, challenge to award. If there are
such occasions, the Courts in Mumbai will have jurisdiction. This is the
interpretation given by Supreme Court.
17. In this case there is no arbitration clause but there is only
jurisdiction clause giving jurisdiction to Mumbai Courts. There is no
place of seating of arbitration in the agreements. Jurisdiction Clause is
to be interpreted as “ When there is an occasion to take recourse to the
remedies as per provision of Arbitration and Conciliation Act, then it is
the Mumbai Court who is having jurisdiction ”.
18. I have given this interpretation because the ‘ remedy of
arbitration ’ has to be read in view of the provisions of Entry 14 of First
Schedule to Limited Liability Partnership Act. I am rejecting the
objection on the ground of jurisdiction clause.
19. In Kartik Radia (supra) judgment the issue was “when Limited
Liability Partnership is not a signatory to Limited Liability Partnership
agreement – Whether dispute in between Limited Liability Partnership
and partners can be referred to the arbitration. In that case there was an
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arbitration agreement itself contained in Limited Liability Partnership
agreement (para 7). The argument that “ Limited Liability Partnership
is third party to the agreement ” was turned down. If it is accepted, it is
just like Company is third party to its own Articles of Association (para
no. 11). Here that is not the argument advanced on behalf of
Respondents. Here we have an agreement dated 15.10.2019 and
subsequent agreements signed as partners of Limited Liability
Partnership.
20. The High Court of Karnataka in case of Maverick Motors LLP
6
represented by its authorized signatory V/s Rohith Murthy deals with
a situation when there is absence of arbitration clause in the Limited
Liability Partnership agreement, the dispute was referred to an
arbitrator by taking recourse to the provisions of entry 14 to First
Schedule of Limited Liability Partnership Act.
21. There is an objection taken on the basis of resolution of dispute
in view of execution of an agreement dated 07.12.2025 (page 544). It
was in between both the Petitioners, Respondent No. 1 and Shankar
Jha. It is not signed by Petitioner No. 2- Nirmala and there are certain
blank spaces in the agreement. This was alleged to be executed prior to
6 (2025) SCCOnline Kar 26806
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filing of present petition. But I am not upholding this objection in view
of the observations in case of SBI General Insurance Company Limited
(supra) .
22. Even if there is accord/satisfaction it will not bar an arbitration.
Because in that case dispute was of quantum and such a dispute does
not pertain to existence of arbitration agreement. In case before us,
Petitioners have taken recourse to statutory arbitration (in case of
absence of provision) as per First Schedule of Limited Liability
Partnership Act. Even otherwise, Petitioners are challenging the
settlement agreement. Hence, I am rejecting the objection.
23. Last issue arises whether parties who are not signatories to
Limited Liability Partnership agreement can be referred to arbitration.
24. It is true there are various agreements referred by the parties and
which are mentioned above. Newly added Respondent No. 2, 3 and 4
have already submitted that they are ready to participate before Arbitral
Tribunal. I am deciding the issue in between the Petitioners on one
hand and Respondent No. 1 on the other hand. Following are the
agreements which are concerning the Petitioners and Respondent No.
1:-
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a) The agreement dated 15.10.1990 executed in between
Petitioner No. 2 – Nirmala and Trusha Vaghasiya.
b) Supplementary agreement dated 25.02.2019, thereby
adding Petitioner No. 1-Prashant alongwith original
partners Nirmala and Trusha.
c) Supplementary agreement dated 10.10.2020 in between
Petitioner No. 2-Nirmala, Trusha (as retiring partners),
Petitioner No. 1-continuing designated partner and
Respondent No. 1-Vivekanand-continuing designated
partner.
d) Memorandum of understanding dated 10.11.2021.
e) Supplementary agreement dated 01.07.2024 in between
Petitioner no. 1-Prashant and Petitioner No. 2-Nirmala,
page no. 346.
f) Supplementary cum principal agreement dated
07.12.2025 in between both Petitioners, Shankar Jha and
Respondent No. 1-Vivekanand.
25. If we consider all these agreements, we can gather that at some
point of time they were partners of Avighnaa Infra. In view of that the
dispute in between both the Petitioners and Respondent No. 1 can
certainly be referred to an arbitration.
26. The Petitioner No. 1-Prashant has already invoked arbitration
clause by issuing a notice dated 17.06.2025 issued to the Respondent
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No. 1 (page no. 292). There is reference of provisions of LLP Act in
the said notice. It is true this notice was not issued on behalf of the
Petitioner No. 2-Nirmala. The purpose of notice is to calculate a
limitation period, otherwise notice is not mandatory. I overruled the
objection that notice is not issued by Petitioner No. 2-Nirmala.
27. It is true that Respondent No. 1-Vivekanand in his reply has
contended that the dispute before arbitrator should not be restricted to
settlement of accounts but it should also contain his grievance about
expulsion and other matters. He is right if disputes are referred all the
disputes needs to be resolved and parties are at liberty to put forth their
submission.
28. The place of seating will be at Mumbai only. I say so because as
per the jurisdiction clause the Mumbai Court will be having
jurisdiction.
29. Now the issue is whether Respondent No. 3, 4 and 5 and
Nishant Properties and Developers private limited will be allowed to
participate before the Arbitrator. Nishant property claims that they
have financed Vighnaharta construction. At this stage, it will be
material to consider the observations in case of ASF Buildtech Private
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Limited (supra) . It is true Supreme Court has interpreted the
provisions of Section 2 (h), 7, 8 and Section 11 of 1996 Act. It is
observed the scope of inquiry while dealing with a petition under
Section 8 and scope of inquiry while dealing with a petition under
Section 11 of 1996 Act are different. It is true Supreme Court has dealt
with status of party who are not signatory to the arbitration agreement
viz.a viz scope of inquiry under Section 11 of 1996 Act. The Supreme
Court also deliberated on impleadment of non-signatory to the
arbitration agreement when there are proceedings before Arbitral
Tribunal. In the present petition, we are considering what is effect of
non signatories to the arbitration agreement on proceedings under
Section 11 of 1996 Act. Observation in para no. 88 are relevant.
“Thus, even in the absence of the non-signatory being made
a party to the proceedings before the referral court, and
where the question of its impleadment has neither been
raised nor addressed or left open to the arbitral tribunal by
the referral court, the arbitral tribunal would be full
empowered to examine this issue in the first instance and
determine whether any non-signatory is bound by the
arbitration agreement based on the factual circumstances of
the case, and if necessary, implead such non-signatory to the
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arbitration proceedings .”
30. In view of the above, liberty can be granted to Respondent Nos.
2, 3, 4 and Nishant property to apply before the learned Arbitrator for
their impleadment and learned arbitrator is at liberty to take
appropriate decision. Even the Petitioners can also apply for their
impleadment before the learned Arbitrator.
31. Considering the nature of the dispute involved, I feel that retired
judge of this Court can be appointed as sole Arbitrator. Hence, the
order :-
ORDER
A) Mr. R. D. Dhanuka, retired Judge of this Court is hereby
appointed as the Sole Arbitrator to adjudicate upon the
disputes and differences between the parties arising out and
in connection with the matter referred above;
Office address :- c/o Shri Chirag Shah, Advocate,
11B Nirmal Building,
th
11 Floor, Vidhan Bhawan Marg,
Nariman Point, Mumbai – 400 021.
Email id :- [email protected]
Contact no. :- 022-69040000
B) A copy of this Order will be communicated to the Learned
Sole Arbitrator by the Advocates for the Petitioners within
a period of three weeks from the date of uploading of this
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order. The petitioner shall provide the contact and
communication particulars of the parties to the Arbitral
Tribunal along with a copy of this Order;
C) The Learned Sole Arbitrator is requested to forward the
statutory Statement of Disclosure under Section 11(8) read
with Section 12(1) of the Act to the parties within a period
of two weeks from receipt of a copy of this Order;
D) The parties shall appear before the Learned Sole Arbitrator
on such date and at such place as indicated, to obtain
appropriate directions with regard to conduct of the
arbitration including fixing a schedule for pleadings,
examination of witnesses, if any, schedule of hearings etc.
At such meeting, the parties shall provide a valid and
functional email address along with mobile and landline
numbers of the respective Advocates of the parties to the
Arbitral Tribunal. Communications to such email
addresses shall constitute valid service of correspondence in
connection with the arbitration;
E) All arbitral costs and fees of the Arbitral Tribunal shall be
borne by the Petitioners and Respondent No. 1 equally
and subject to final outcome of the award.
F) Place of sitting will be at Mumbai.
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G) The Parties are at liberty to submit before the learned
Arbitrator which are areas of the dispute and right and
contentions of the parties are kept open.
32. Petition is disposed of in above terms.
33. Pending Interim Application, if any, also stands disposed of.
[S. M. MODAK, J.]
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