This judgment orders appointment of a sole arbitrator under Section 11(6) of the Arbitration Act for a dispute regarding a partner's share in a firm, based on a valid arbitration clause in the partnership deed, dismissing the challenge to the reference order.
Arbitrator appointed; Original Petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 12TH DAY OF AUGUST 2022 / 21ST SRAVANA, 1944
AR NO. 48 OF 2022
APPLICANTS:
1 M/S CUBE MODULAR DESINGS,34/2294 AL, RK CHAMBERS, MAMANGALAM, PALARIVATTOM P.O., ERNAKULAM DISTRICT, PIN - 682025 REPRESENTED BY ITS MANAGING PARTNER JAYARAJ C., AGED 45 YEARS, S/O. K. P. CHANDRASEKHARA MENON, KIZHAKKEMADHOM, THRIKKARIYOOR P.O., THRIKKARIYOOR VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 692. 2 JAYARAJ C.,AGED 45 YEARS, S/O. K. P. CHANDRASEKHARA MENON, KIZHAKKEMADHOM, THRIKKARIYOOR P.O., THRIKKARIYOOR VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN686 692.
3 JAYAKRISHNAN B,AGED 50 YEARS, S/0.BALAKRISHNAN PILLAI, KAPPILLIL HOUSE, PULLUVAZHI P.O., RAYAMANGALAM VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 541 BY ADV SHIJU VARGHESE
OPPOSITE PARTY:
LAL O.B, AGED 55 YEARS, S/O. BHASKARAN KARTHA' OORAPPRA MADHOM, CHOWARA P.O., CHOWARA VILLAGE, ALUVA TALUK, ERNAKULAM, PIN - 683 571 BY ADVS.JOSEPH KODIANTHARA(SR) SHARAD JOSEPH KODANTHARA V.ABRAHAM MARKOS ISAAC THOMAS P.G.CHANDAPILLAI ABRAHAM ALEXANDER JOSEPH MARKOS
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 12.08.2022, ALONG WITH OP(CIVIL).2016/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 12TH DAY OF AUGUST 2022 / 21ST SRAVANA, 1944
OP(C) NO. 2016 OF 2021
AGAINST THE ORDER COMMERCIAL SUIT 269/2020 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, ERNAKULAM
PETITIONER:
LAL O.B,AGED 56 YEARS,S/O.BHASKARAN KARTHA, OORAPPRA MADHOM, CHOWARA P.O., CHOWARA VILLAGE, ALUVA TALUK, ERNAKULAM, PIN-683571. BY ADVS.BAIJU JOHN
ELDHO K.MATHEW JOHN CHERIAN
RESPONDENTS:
BY ADV SHIJU VARGHESE FOR R1 & R2
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2022, ALONG WITH AR.48/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
==============================
O.P(C) No.2016 of 2021 & Arbitration Request No.48 of 2022 ========================== Dated this the 12th day of August, 2022
ORDER
Order under Section 8 of the Arbitration and
Conciliation Act, 1996 in a suit, referring the parties to arbitration, is under challenge in O.P(C) No.2016 of 2021. In the Arbitration Request, the defendants in the suit seek for an order of appointment of Arbitrator.
partners of the 3rd defendant partnership firm. The plaintiff retired from the firm. The suit is filed for settlement of the plaintiff's share in the firm. According to the plaintiff, defendants 1 and 2 have started another business in the name of the 4th defendant firm and has diverted the funds of the 3rd defendant firm. It is on the above allegations that the suit was filed. In the suit the defendants appeared and
filed I.A No.3 of 2021 under Section 8 of the
Arbitration and Conciliation Act, 1996 seeking to refer
O.P(C) No.2016 of 2021& Arbitration Request No.48 of 2022 -: 2 :-
the parties to arbitration. As per order dated 01.10.2021, the Court, finding the existence of an arbitration clause in the Partnership Deed, referred the parties to arbitration. The challenge in the O.P(c) is against the said order.
the suit seek for appointment of an Arbitrator for resolution of the disputes between the parties in respect of the 3rd defendant firm through arbitration.
21.05.2010 reads thus:
“That in case of any dispute or difference arising
between the partners or their legal representatives, the same shall be referred for decision to one or more arbitrators appointed, by the disputing party and the other partners and the decision of the arbitrator or arbitrators shall be binding and conclusive on all partners.”
O.P(C) No.2016 of 2021& Arbitration Request No.48 of 2022 -: 3 :-
the plaintiff as a partner of the firm, the court was right in holding that the parties are bound by the term in the partnership deed providing for arbitration for resolution of the disputes in relation to the firm.
admitted, and the parties being unable to arrive at a
O.P(C) No.2016 of 2021& Arbitration Request No.48 of 2022 -: 4 :-
consensus regarding appointment of an Arbitrator for
resolution of the disputes, it is only proper that an Arbitrator be appointed by this Court in terms of Section 11(6) of the Arbitration and Conciliation Act, 1996.
Accordingly, leaving open the rival contentions of the parties, the Arbitration Request is ordered as hereunder:
(a) Rtd. District Judge Sri.Thomas
Pallickaparambil, Evas' House, River Gate Apartments, Manakkad P.O, Thodupuzha, Pin- 685 608, Mobile No. - 9496739618, is provisionally nominated as the Sole Arbitrator to adjudicate upon the disputes between the parties.
(b) A copy of this order shall be communicated to the learned Arbitrator by the Advocate of the applicant
within a period of one week from today. A copy of the order shall also be forwarded to the learned Sole
O.P(C) No.2016 of 2021& Arbitration Request No.48 of 2022 -: 5 :-
Arbitrator by the Registry.
(c) The Arbitrator is requested to forward his
statement of disclosure under Section 11(8) r/w Section
12(1) of the Arbitration and Conciliation Act, 1996.
(d) The registry shall place the disclosure statement before this Court, for confirmation of the appointment of the Arbitrator.
(e) The Arbitrator's fees shall be payable as per Schedule IV to the Arbitration and Conciliation Act, 1996.
The Original Petition fails and is accordingly dismissed.
Sd/-
Sathish Ninan, Judge
vdv
APPENDIX OF OP(C) 2016/2021
| PETITIO | NER EXHIBITS |
|---|---|
| Exhibit | P1 THE TRUE COPY OF THE PARTNERSHIP DEED DATED 21.05.2010. |
| Exhibit | P2 A TRUE COPY OF THE PLAINT DATED 02.07.2020 FILED BY THE PETITIONER BEFORE THE SUBORDINATE JUDGES COURT IN C.S.NO.269/2020. |
| Exhibit | P3 A TRUE COPY OF THE PETITION DATED 06.08.2021 FILED BY THE RESPONDENT NO.1 TO 3 BEFORE THE COMMERCIAL COURT THROUGH I.A.NO.3/2021 IN C.S.NO.269/2020. |
| Exhibit | P4 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 02.09.2021 FILED BY THE PETITIONER IN I.A.NO.3/2021 IN C.S.NO.269/2020. |
| Exhibit | P5 A TRUE COPY OF ORDER DATED 01.10.2021 BY THE COMMERCIAL COURT. |
| Exhibit | P6 A TRUE COPY OF THE JUDGMENT DATED 01.10.2021 BY THE COMMERCIAL COURT. |
APPENDIX OF AR 48/2022
PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE PARTNERSHIP DEED DATED 21.5.2010 Annexure A2 TRUE COPY OF THE NOTICE DATED 30.8.2021 Annexure A3 TRUE COPY OF THE REPLY NOTICE DATED 8.9.2021
3 issues framed by the court
Whether the court can refer parties to arbitration when the 4th defendant is not a party to the partnership deed.
Whether an arbitrator can be appointed by the court when parties cannot agree on the arbitrator.
Whether the arbitration clause in the partnership deed binds the parties for the settlement of the share in the firm.
4 provisions across 1 enactments
Lal O.B
Cube Modular Designs
Jayaraj C
Jayakrishnan B
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
