Allowed

Mr. Kuruvilla Thomas v. Mr. George Thomas

Kerala HC24 Jul 2023AR/38/2023

Case brief

AI extract

What is this about?

Allowed an Arbitration Request by a partner of 'Thomsun Granites' to appoint a Sole Arbitrator. The Court rejected the limitation plea as an issue for the Arbitrator and appointed Mrs. Justice Shircy V. as the sole arbitrator in terms of the Partnership Deed.

What did the court decide?

Appointment of Mrs. Justice Shircy V. as the Sole Arbitrator to adjudicate disputes between the parties arising from the Annexure-A1 Agreement.

Mr. Kuruvilla Thomas Vs Mr. George Thomas — Arbitration | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 24^TH DAY OF JULY 2023 / 2ND SRAVANA, 1945

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AR NO. 38 OF 2023

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APPLICANT/PETITIONER:

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MR. KURUVILLA THOMAS AGED 49 YEARS S/O. LATE MR. K.V. THOMAS, KOCHUKUDY HOUSE, V/289, KALOOR, KALOORKAD, THODUPUZHA NOW RESIDING AT SERENADE APARTMENTS, PAVOOR ROAD, PADIVATTOM, ERNAKULAM DISTRICT, KOCHI, PIN - 682024

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BY ADVS. P.M.JOSHI SIJI K.PAUL BONNY BABY VISHNU PRASAD

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OPPOSITE PARTIES/RESPONDENTS:

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1 MR. GEORGE THOMAS, AGED 57 YEARS,S/O. LATE MR. K.V. THOMAS, V/289, KOCHUKUDY HOUSE, KALOOR,KALOORKADU, THODUPUZHA,, PIN - 686668

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2 MR. BONNIE THOMAS ,AGED 42 YEARS,S/O. LATE MR. K.V. THOMAS, V/289, KOCHUKUDY HOUSE, KALOOR,KALOORKADU, THODUPUZHA,, PIN - 686668

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3 MR ANTONY THOMAS ,AGED 48 YEARS,S/O. LATE MR. K.V. THOMAS, KOCHUKUDY HOUSE, WEST KODIKULAM, THODUPUZHA,, PIN - 686668

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4 MRS SALY THOMAS, AGED 82 YEARS, W/O LATE . K.V. THOMAS, V/289, KOCHUKUDY HOUSE, KALOOR, KALOORKADU, THODUPUZHA,, PIN - 686668

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BY ADVS. Sradhaxna Mudrika – R1,R2 AND R4 PRASOON K P - R3 MATHEW A KUZHALANADAN – R1,R2 AND R4

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AR NO. 38 OF 2023

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KURIAKOSE VARGHESE – R1,R2,R4 V.SHYAMOHAN - R1,R2,R4 GEORGE J.NALAPPAT - R1,R2,R4 SRUTHI SUNILKUMAR - R3

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THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AR NO. 38 OF 2023

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O R D E R

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The petitioner, who is stated to be a partner of a Firm by name 'Thomsun Granites' has approached this Court through this Arbitration Request, seeking that Sole Arbitrator be appointed to adjudicate and resolve certain disputes between him and the respondents – who are the other partners of the firm - since Anenxure-A1 Partnership Deed mandates the parties to do so, in the event of differences of opinion arising between them with respect to its terms.

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Sri. P.M.JoshI – learned counsel for the petitioner, submitted that, as has been averred in the pleadings, disputes and differences of opinion between the partners arose, touching upon Annexure-A1, but which could not be resolved through mutual discussions; and therefore that his client addressed the respondents, through Annexure-A3 notice, seeking appointment of an Arbitrator, but which has not been acceded to or even replied to by them, in spite of the fact that they received it as manifest from Annexures A4, A6 and A7 acknowledgments. He, therefore, prayed that this Court allow this Arbitration Request and appoint a Sole Arbitrator in terms of Clause 19 of Annexure- A1 Agreement

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AR NO. 38 OF 2023

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between the parties.

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In response, however, Sri.Mathew A.Kuzhalnadan - learned counsel for the respondents, submitted that, even going by Paragraph 5 of this Arbitration Request, the claims impelled by the petitioner are barred by time. He added that, therefore, going by the various judgments covering the field, this Arbitration Request is not maintainable.

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However, in reply, Sri.P.M.Joshi submitted that there is no question of limitation as far as the disputes between the parties are concerned because, they are ongoing ones and since the respondents themselves admit that his client was involved in the activities of the Firm even as recent as in 2021. He submitted that, in any event, the question whether the the disputes are hit by limitation, are also once that would require to be decided by the Arbitrator.

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I have considered the afore rival submissions of the parties and have gone through the pleadings on record.

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The sole ground on which the respondents oppose

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this Arbitration Request is that the disputes, as impelled by the petitioners, are hit by limitation.

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When one examines Annexure-A3, which is the notice issued by the petitioner to the respondents seeking

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AR NO. 38 OF 2023

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that an Arbitrator be appointed, he admits that the original agreement of partnership was dated 28.04.2003, which was then reconstituted on 1.04.2007; and then subsequently to be allegedly dissolved on 6.12.2022, as per the notice of dissolution sent by him. He alleges that there have been various instances of misappropriation and maladjustment of accounts of the Firm; and therefore that he had filed OP(Arb) No.37/2022 before the Arbitration Court, Thodupuzha, under Section 9 of the Arbitration and Conciliation Act, 1996 (the Act for short).

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The afore assertions of the petitioner are controverted by the respondents through their counter affidavit, but conceding that they did not file a reply to Annexure-A3. They aver in their pleadings that the property of the Firm was owned by all the partners, in which quarrying permits were obtained and thus quarrying operations conducted and further that the assertion of the petitioner, that the respondents began such operations in the year 2010, is incorrect and erroneous. They then say that the 1^st respondent, being the Managing Partner, issued the quarrying lease, on the basis of which, quarrying operations were carried out; and that the petitioner has, therefore,

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AR NO. 38 OF 2023

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approached this Court at a belated stage, but without explaining how. They, however, assert that the petitioner had no issue regarding the quarrying operations and that he should have sought for the appointment of an Arbitrator much earlier, but not having waited till now, thus enjoying all the benefits arising from the business.

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Pertinently, thereafter, the respondents concedes that “ as recent as on 29.10.2021 the Respondent No.2 had submitted an NOC to the Geologist in the presence of the petitioner to obtain permission to conduct the quarrying operations on the disputed property ” (sic). They then assert that the said action was a voluntary “initiative” of the petitioner himself, to continuing the quarrying operations on the disputed property; and therefore that his allegation that he has been unfairly “ kept in the darkness in respect of the business operation ” (sic), leading to improper books of accounts etc; are incorrect and factually wrong. They conclude saying that the daily operations of the business have been informed to the partners via e-mail on a daily basis, but that the petitioner has suppressed all this in approaching this Court.

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AR NO. 38 OF 2023

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It is, therefore, indubitable that, even going by the assertions in the counter averments, the operations of the Firm are still going on and that the petitioner continues as a partner therein. How the respondents say that the claims of the petitioner are hit by limitation have not been explained; and it can hence only be deduced that they are saying so because the quarrying activities started merely two decades earlier, but the petitioner having raised his objections only recently. How this can preclude the petitioner from seeking Arbitration of the disputes between the parties is not discernible from the counter pleadings or from the submissions made at the Bar by the respondents; and therefore, am of the firm view that these are issues are also to be decided by the learned Arbitrator himself, while the adjudication is taken forward under the provisions of the 'Act'.

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To reiterate, it is only in case where the respondents are able to establish affirmatively that the claims made by the petitioners are hit by limitation, can they assert that this Court cannot entertain this Arbitration Request; but, in the case at hand, their specific allegation is that the partnership was reconstituted on 01.04.2007 and that the activities of the Firm were thereafter continued with the

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AR NO. 38 OF 2023

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permission of the petitioner, which is evident from the alleged fact that the NOC was submitted to the Geologist as recently as on 29.10.2021.

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It is hence ineluctable that the question of limitation is not one that can be impelled against the maintainability of this Arbitration Request, since they are disputed and will require to be properly adjudicated.

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This is more so because, the cause of action of the petitioner is to be determined from the date on which the disputes actually arose and not on the date on which partnership was reconstituted. As far as this case is concerned, the parties are virtually without dispute that the Firm was continuing its operation all through, though the petitioner says that it has been done without putting him on notice, as to its accounts.

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That said, when one examines Annexure – A1, it is without doubt that it obligates the parties, through clause 19 thereof, to resolve their disputes through Arbitration as per the Act. In fact, this is expressly admitted by both sides.

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In the afore circumstances, I see no reason to deny relief to the petitioners, though it will certainly be upto the respondents to impel all their contentions - including on

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AR NO. 38 OF 2023

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the question of limitation of the claims - before the learned Arbitrator; for which purpose, all such and every other contentions are left open.

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Resultantly this Arbitration Request is allowed in the following manner:

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(a) I nominate Mrs.Justice Shircy V., Building No.XII/236 – C, Aiswarya, M.P. Colony Road, Near S.N.Junction, Tripunithura, Kochi – 682 301, as the Sole Arbitrator, to adjudicate and resolve the disputes and differences between the parties to this case arising from Annexure-I agreement.

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(b) The Registry is directed to communicate a copy of this order to the learned Arbitrator within a period of two weeks from today and to obtain a Statement of Disclosure from him under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996.

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learned Arbitrator, the Registry shall release the certified copy of this order, with a copy of the said statement appended to it, retaining the original of the same on the files of this case.

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(d) The fees of the Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996.

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AR NO. 38 OF 2023

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(e) In order to enable the Arbitrator to commence the proceedings without delay, I direct the parties to mark appearance before him at 11 AM on 04.09.2023

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Needless to say, every contention of the parties, including with respect to the legality of the agreement in question, are left open to be decided appropriately by the Arbitrator, if it is impelled before him.

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Sd/-DEVAN RAMACHANDRAN, JUDGE

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lsn

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AR NO. 38 OF 2023

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APPENDIX OF AR 38/2023

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PETITIONER ANNEXURES

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AnnexureA1	THE TRUE COPY OF (RE-CONSTITUTED)	THE PARTNERSHIP DEED DATED 1-4-2007
Annexure2	THE TRUE COPY OF SUBMITTED IN ARB.	THE COMMISSION REPORT O.P.NO. 37/2022
AnnexureA3	THE TRUE COPY OF 12-2022 FOR APPOI SENT BY APPLICANT	THE NOTICE, DATED 7- NTING ARBITRATOR, TO RESPONDENTS
AnnexureA4	THE TRUE COPY OF CARD SIGNED BY 1S	THE ACKNOWLEDGMENT T RESPONDENT
AnnexureA5	THE TRUE COPY OF ADDRESSED TO 2ND	THE RETURNED ENVELOP OPPOSITE PARTY
AnnexureA6	THE TRUE COPY OF CARD SIGNED BY 3R	THE ACKNOWLEDGMENT D RESPONDENT
AnnexureaA7	THE TRUE COPY OF CARD SIGNED BY 4T	THE ACKNOWLEDGMENT H RESPONDENT

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RESPONDENTS EXHIBITS: NIL

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TRUE COPY

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P.A TO JUDGE

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LSN

Mr. Kuruvilla Thomas v. Mr. George Thomas

Case brief

What is this about?

What did the court decide?

Mr. Kuruvilla Thomas v. Mr. George Thomas

Case brief

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What did the court decide?

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