IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
AR NO. 96 OF 2018
PETITIONERS:
1 MARY JOSE,
AGED 73 YEARS
W/O.DR.JOSE PAUL, VELLIMOOZHAYIL HOUSE, THODUPUZHA,
PIN-685 584, THODUPUZHA VILLAGE, THODUPUZHA TALUK,
IDUKKI DISTRICT.
2 SHIBU JOSE,
AGED 47 YEARS
S/O.DR.JOSE PAUL, VELLIMOOZHAYIL HOUSE, THODUPUZHA,
PIN- 685 584, THODUPUZHA VILLAGE, THODUPUZHA TALUK,
IDUKKI DISTRICT.
BY ADVS.
ANIL XAVIER
SRI.GEORGE G.POOTHICOTE
SRI.M.RISHIKESH SHENOY
SMT.S.SMITHA (PRASANTH)
RESPONDENT:
DR. RAJU MATHEW,
AGED 69 YEARS
SON OF E.J.MATHEW, EDATHALA HOUSE, RAMALLOOR, KOTHAMANGALAM,
PIN-686 691, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,
ERNAKULAM DISTRICT.
BY ADV SRI.MATHEW KURIAKOSE
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
Arbitration Request No.96 of 2018
= = = = = = = = = = = = = = = = = =
Dated this the 23rd day of June, 2022
O R D E R
The arbitration request is filed under Section 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of an Arbitrator for resolution of the disputes between the petitioners and the respondent that has arisen under Annexure-A Deed of Partnership. The application is opposed by the respondent. A counter affidavit has been filed challenging the relief sought.
2. Heard the learned counsel on either sides.
3. Annexure-A is stated to be the Deed of Partnership dated 01.04.2015, between the petitioners and the respondent. Clause-18 of the Deed provides for settlement of disputes through arbitration. The genuineness of Annexure-A partnership deed is seriously disputed/challenged by the respondent. It is contended that Annexure-A is a forged document and that the Arbitration Request No.96 of 2018 -: 2 :- respondent has not executed the same. To contend that Annexure-A deed is a fabricated one, respondent relies on Annexure-R1(a) true extract of Form-A Register of Firms dated 01.03.2018. It indicates that, as per the Register maintained under Section 59 of the Indian Partnership Act, since the year 1975 till the date of issuance of Annexure-R1(a) on 1.03.2018, the partners of the firm are the respondent and two others. The said document does not contain the names of petitioners. The respondent relies on the same to contend that Annexure-A Partnership Deed is a fabricated one. Whether Annexure-A Deed is a fabricated one or not etc. are all matters that could be urged before the Arbitrator. It is for the Arbitrator to take evidence and enter the finding on the factual contention. [See Pravin Electricals Pvt. Ltd. v. Galaxy Infra and Engineering Pvt. Ltd. (2021 (2) KLT 1007 (SC) ; Vidya Drolia v. Durga Trading Corporation (2020 (6) KLT 1025 (SC) and Intercontinental Hotels Group (India) Pvt, Ltd. v. Waterline Hotels Pvt. Arbitration Request No.96 of 2018 -: 3 :- Ltd. (2022 (1) KLT 1170 (SC)]. In the course of the same, it is necessarily open for the respondent to urge his contentions as above.
4. There is a suit pending between the parties before the Munsiff's Court, Thodupuzha. Therein, an order was passed under Section 8 of the Arbitration and Conciliation Act referring the parties to mediation. Challenging the same an Original Petition was filed before this Court in which the said order has been stayed. The said original petition is pending consideration before this Court. Section 8(3) of the Arbitration and Conciliation Act provides that the pendency of a proceeding under Section 8(1) seeking reference to arbitration does not prevent an arbitration to be commenced or continued and an arbitral award made. The challenge of the respondent being on the genuineness of the Deed of Partnership, in the light of the statutory provision and the judgments of the Apex Court Arbitration Request No.96 of 2018 -: 4 :- cited supra, it is a question to be raised and adjudicated by the Tribunal. Accordingly the arbitration request is disposed of with the following directions:-
(a) Retd. Justice Sri.K.Abraham Mathew, 'Kandathil', Near Satellite Township, Padamugal, Kakkanad P.O., Kochi-682030, is nominated provisionally as the Sole Arbitrator to adjudicate upon the disputes between the parties arising out of Annexure-A.
(b) A copy of this order shall be communicated to the learned Sole 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 Arbitrator by the Registry.
(c) The Arbitrator is requested to forward the statement of disclosure under Section 11(8) r/w Section 12(1) of the Act 3 of 2016.
(d) The registry shall place the disclosure statement before this Court, for confirmation of the Arbitration Request No.96 of 2018 -: 5 :- appointment of the Arbitrator.
(e) The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017.
(f) The arbitration costs and fees shall be shared equally.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge APPENDIX OF AR 96/2018 PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE PARTNERSHIP DEED DATED 01.04.2015 EXECUTED BETWEEN THE PETITIONERS AND THE RESPONDENT.
ANNEXURE B TRUE COPY OF THE LEGAL NOTICE DATED 10.09.2018 ISSUED BY THE PETITIONERS TO THE RESPONDENT. ANNEXURE C TRUE COPY OF THE REPLY DATED 12.10.2018 ISSUED BY THE RESPONDENT.
ANNEXURE-R1(a) TRUE COPY OF FORM-A OF THE REGISTER OF FIRMS DATED 01.03.2018 ISSUED BY THE REGISTRAR OF FIRMS, THIRUVANANTHAPURAM AS REGARDS THE PARTNERSHIP, VIZ, 'M/S MOUNT SINAI HOSPITAL. ANNEXURE-R1(b) TRUE COPY OF THE ORDER DATTED 14.06.2018 IN IA 389/2018 IN OS 122/2018 ON THE FILES OF THE MUNSIFF'S COURT, THODUPUZHA.
ANNEXURE-R1(c) TRUE COPY OF THE ORDER DATED 09.07.2018 IN OP(C) NO.1678/2018 OF THIS HONOURABLE COURT.
-----