Allowed

B.Biju v. Geetha and Others

Kerala HC3 Aug 2011AR/59/2010

Case brief

AI extract

What is this about?

The High Court allowed the applicant's request to appoint an arbitrator for disputes arising between partners in a partnership firm. The court relied on the settlement in an ancillary suit and the pending arbitration order to direct the appointee to settle disputes regarding partnership assets, including leasehold rights and treated advances.

What did the court decide?

Appointment of Sri. M.S. Mohanachandran, Retd. District Judge, as the Arbitrator to resolve disputes regarding the partnership assets, liabilities, and leasehold rights.

B.Biju Vs Geetha and Others — Arbitration | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933

AR.No. 59 of 2010()

APPLICANT :

---------B.BIJU, AGED 34 YEARS, S/O. BAHULEYAN, RESIDING AT THUSHARA, AYATHIL CHERRY, VADAKKEVILA VILLAGE, KOLLAM.

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BY ADV. SRI.JOHNSON GOMEZ

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RESPONDENTS:

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GEETHA, AGED 44, W/O. V. SASEENDRA BABU, RESIDING AT HOUSE NO.349, SANDHYA BHAVAN, MUNDAKKAL WEST, UDAYAMARTHANDAPURAM CHERRY, KOLLAM - 691 001.

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BIJU, AGED 33, S/O. SIVARAMAN, RESIDING AT AMBADI HOUSE NO.513, AYATHIL CHERRY, VADAKKEVILA VILLAGE, KOLLAM - 691 017.

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SOMARAJAN, AGED ABOUT 50 YEARS, S/O. NAKUL, RESIDING AT HOUSE NO.858, GOKULAN, ASRAMAM, KOLLAM - 691 002

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JEENA SOMARAJAN,AGED ABOUT 46 YEARS, W/O. SOMARAJAN, RESIDING AT GOKULAM, ASRAMAM, KOLLAM EAST VILLAGE, KOLLAM-691 002.

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ADV. SRI.C.UNNIKRISHNAN (KOLLAM) FOR R1 SRI.P.HARIDAS FOR R3,4 SRI.A.JANI(KOLLAM) FOR R3,4

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SMT.S.SIKKY FOR R3,4

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SRI.S.BIJU (KIZHAKKANELA) FOR R2

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THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN, J.

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Arbitration Request No.59 of 2010

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Dated this the 03^rd day of August, 2011

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ORDER

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The applicant and respondents 1 and 2 entered into Annexure A-1 partnership deed dated 25^th February, 2009. As per the partnership deed, they agreed to conduct a partnership business under the name and style 'M/s. Hotel Adhidhi Residency'. It is stated that 2 buildings, one belonging to the 3^rd respondent and another belonging to respondents 3 and 4, were taken on lease by the partnership. It is also stated that the partners had given Rs.30 lakhs as advance to the land lords of the buildings. The applicant states that the partners had spent Rs.5 lakhs for furnishing and interior decoration of the buildings.

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Disputes arose among the partners. O.S.No.361 of 2010 was filed by the first respondent before the Munsiff's Court, Kollam. It is submitted by the counsel that the relief sought for in the suit is to deliver possession of the property to the first respondent (plaintiff). It is also stated that the petitioner and the second respondent, who are the partners of the firm, were removed from the party array in

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A.R.No.59/2010

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: 2 :

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O.S.No.361 of 2010. Respondents 3 and 4 were defendants 1 and 2 in O.S.No.361 of 2010. The first respondent (Plaintiff) and respondents 3 and 4 (defendants 1 and 2) filed a compromise petition in O.S.No.361 of 2010 by which respondents 3 and 4 agreed to repay a sum of Rs.25 lakhs to the first respondent.

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According to the applicant, he is entitled to a share in the amount agreed to be repaid by the land lords and also a share in the profit. It is also stated that the accounts of the partnership should be settled and the amounts due to the applicant should be paid. Annexure A-3 notice dated 9-11-2010 was sent by the applicant to respondents 1 and 2 invoking Clause 19 of the partnership deed and appointing an Advocate as the arbitrator. Annexure A-4 reply was sent by the first respondent in which it is stated as follows:-

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“It seems that you caused to issue the letters on wrong assumption of law regarding appointment of Arbitrators when there is no agreement between the parties in that matter. I am given to know that since, I am not agreeable to accept a person named by you as an Arbitrator, your course is only to resort to the appointment procedure provided under section 11 of the Arbitration And Conciliation Act, 1996 read with the appointment of Arbitrators by the Chief Justice of Kerala High Court Scheme, 1996.”

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A.R.No.59/2010

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: 3 :

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The petitioner also filed Arbitration O.P.No.283 of 2010 before the District Court, Kollam against the respondents herein for the following reliefs:-

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“A. Pass an order of injunction restraining the 3^rd and 4^th respondents from distributing the settled amount to the 1^st respondent for securing the payment in dispute in arbitration proceedings or direct the 3^rd and 4^th respondents to deposit the scheduled amount before the Court.

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B. Such other reliefs which are just and necessary in the general interest of justice.”

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The first respondent herein is the first respondent in Arbitration O.P.No.283 of 2010. Respondents 3 and 4 herein are respondents 3 and 4 in Arbitration O.P.No.283 of 2010.

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It is submitted that Arbitration O.P.No.283 of 2010 is pending. The prayer in this Arbitration Request is to appoint an arbitrator in accordance with Clause 19 of Annexure-A1 Partnership Deed. Clause 19 of Annexure-A1 Partnership Deed contains the arbitration agreement which reads as follows:-

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“19. Arbitration

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That in case of any dispute regarding meaning and effect of this Deed or any part or any other matters relating to partnership business shall be referred to arbitration and all the provisions of the Indian Arbitration Act shall apply.”

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A.R.No.59/2010

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: 4 :

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The learned counsel appearing for respondent No.1

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as well as respondents 3 and 4 submitted that the matter requires appointment of an arbitrator. It is agreed that Sri.M.S.Mohanachandran, Retd.District Judge, Karthika, Amman Kovil Street, Thevalli, Kollam-691009 may be appointed as an arbitrator.

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Accordingly, the Arbitration Request is allowed. Sri.M.S.Mohanachandran, Retd.District Judge is appointed as the Arbitrator to resolve the disputes between the parties in respect of Annexure A-1 partnership deed and in respect of the assets and liabilities of the partnership including the leasehold right. The Arbitrator would be free to fix the arbitration fee.

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K.T.SANKARAN, JUDGE

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skj

B.Biju v. Geetha and Others

Case brief

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B.Biju v. Geetha and Others

Case brief

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