N.P.Gopinathan Nair vs High Land Chitts Fund Pvt. Ltd
2021 Latest Caselaw 13691 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                             AR NO. 53 OF 2020
APPLICANT:

             N.P.GOPINATHAN NAIR, AGED 65 YEARS
             S/O. PADMANABHAN NAIR, VAISAKH, MADAKKATHANAM P.O,
             MUVATTUPUZHA, ERNAKULAM DISTRICT PIN 686 670

             BY ADVS.
             T.R.HARIKUMAR
             SRI.ARJUN RAGHAVAN



RESPONDENTS:

             HIGH LAND CHITTS FUND PVT. LTD.
             REPRESENTED BY ITS MANAGING DIRECTOR,
             1ST FLOOR, KALLINGAL TOWERS, THODUPUZHA,
             IDUKKI DISTRICT PIN 685 584

             BY ADVS.
             SRI.S.MUHAMMED HANEEFF
             SRI.M.H.ASIF ALI


     THIS    ARBITRATION   REQUEST   HAVING   COME   UP   FOR   ADMISSION   ON
02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 AR 53/20
                                       2



                             JUDGMENT

A former member of the respondent Company -

which is stated to have been registered under the

provisions of the Companies Act, 1956 - has

approached this Court, seeking that the disputes

between him and the Company be referred to a Sole

Arbitrator, to be appointed by this Court.

2. Sri.Arjun Raghavan - learned counsel for

the petitioner, submitted that his client was a

former Director of the respondent Company and that

due to certain persisting disputes, he was forced

to resign as its Director and was constrained to

sell his shares in the Company. He thus admitted

that his client is no longer the Director or

Member of the Company; but asserts that he has

been forced to raise a claim against the latter

because its account has not been settled as on

today. He argued that, therefore, his client has AR 53/20

no other option but to approach this Court

because, as per Annexure I-Memorandum of

Association and Articles of Association of the

Company, any dispute between the members and the

Company and between the Company and a third party

will have to be referred to Arbitration. He thus

prayed that this Arbitration Request be allowed.

3. In opposition to the above, Sri.Muhammed

Haneef - learned counsel appearing for the

respondent-Company, submitted that a detailed

counter affidavit has been filed by his client,

wherein, they have primarily taken the stand that

this Arbitration Request is not maintainable,

because there is no valid Arbitration Agreement or

Arbitration Clause. He vehemently submitted that

the Clauses in Annexure I cannot be construed as

an Arbitration Agreement between the petitioner

and the respondent, particularly because he is no

longer a member of the Company; and thus prayed

that this Court dismiss this request, without AR 53/20

entering into the merits of the disputes between

the parties.

4. Sri.Muhammed Haneef then added that there

are various other contentions impelled by his

client against the Arbitration Request made by the

petitioner, which have been averred in the counter

affidavit, especially that actually there are no

disputes between the petitioner and the Company

and that what have raised by him are fallacious.

He, therefore, prayed that this Arbitration

Request be dismissed.

5. I have heard the afore submissions very

carefully.

6. As rightly submitted by Sri.Muhammed

Haneef, the jurisdictional province of this Court

in an Arbitration Request is greatly attenuated on

account of the amendment to the Arbitration and

Conciliation Act, 1996 in the year 2019. After the

introduction of sub section (6A) to Section 11 of

the Act, what this Court is to preliminarily AR 53/20

examine is whether there is an Arbitration

Agreement or Clause that binds the parties.

7. Sri.Arjun Raghavan relies for this purpose

on Annexure I, particularly Article 15 thereof,

which provides as under:

15. To refer or agree to refer any claims, demands, disputes or any other question by or against the company or in which the company is interested or concerned whether between the company and the members or his or their representatives or between the company and third party to arbitration in India or any place outside India and to observe and perform and to deal, acts, deeds, matters and things to carry out or enforce the awards.

8. I am afraid, however, that the afore

Clause cannot be construed as an Arbitration

Clause between the petitioner and the Company

because it is made clear therein that only the

disputes between the members and the Company and

between the Company and third parties can be

referred to Arbitration.

9. In the case at hand, the petitioner admits

that he was a member of the Company as also its AR 53/20

Director, but that he is no longer holding any

shares, thus disentitling him to hold himself over

as being even a member as on today. I am,

therefore, of the view that Article 15 of Annexure

I cannot come to the avail of the petitioner to

claim that parties are bound by Arbitration

Agreement or Clause of Arbitration.

10. Presumably, discerning the mind of this

Court as afore, Sri.Arjun Raghavan submitted that

if this Court is not inclined to accept this

Arbitration Request, then his client may be given

liberty to approach the competent Civil Forum for

ventilating his grievances. I am certain that this

request can be acceded to by this Court, since,

subject to the Laws of Limitation, petitioner can

surely invoke the civil laws for settlement of

the accounts of the Company and such other.

In the afore circumstances, I dismiss this

Arbitration Request, finding it to be not

maintainable; however, leaving full liberty to the AR 53/20

petitioner to invoke any remedy that may be

available to him, including before the competent

Civil Court; for which purpose, all contentions of

the rival parties are left open to be pursued in

future.

Sd/-

RR                                   DEVAN RAMACHANDRAN
                                              JUDGE
 AR 53/20


                           APPENDIX

PETITIONER ANNEXURE

ANNEXURE 1            A TRUE COPY OF THE MEMORANDUM OF
                      ASSOCIATION DATED 27-08-2012

ANNEXURE II           A TRUE COPY OF THE ARTICLES OF
                      ASSOCIATION DATED 27-08-2012

ANNEXURE III          A TRUE COPY OF THE FINANCIAL STATEMENT

FOR THE YEAR 2016-2017 DATED 15-07-2017

ANNEXURE IV A TRUE COPY OF THE FINANCIAL STATEMENT FOR THE YEAR 2017-2018 DATED 28-06-2018

ANNEXURE V A TRUE COPY OF THE FINANCIAL STATEMENT FOR THE YEAR 2018-2019 DATED 29-08-2019

ANNEXURE VI A TRUE COPY OF THE LEGAL NOTICE ISSUED TO THE RESPONDENT DATED 24-04-2020 ALONG WITH POSTAL ACKNOWLEDGEMENT CARD

ANNEXURE VII A TRUE COPY OF THE POSTAL ENDORSEMENT MARKED UPON THE ENVELOPE OF ANNEXURE-VI REGISTERED NOTICE.

Annexure R1(I) A TRUE COPY OF THE REGISTRATION LETTER DATED 18/01/2020 SUBMITTED BY THE APPLICANT.

Annexure RI(II) A TRUE COPY OF THE SHARE TRANSFER LETTER SUBMITTED BY THE APPLICANT DATED 18/01/2020.

Annexure R1(H) A TRUE COPY OF THE RECEIPT FOR SITTING FEE PAID TO THE APPLICANT DATED 15/06/2017.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (I) FEE PAID TO THE APPLICANT DATED AR 53/20

12/07/2017.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (J) FEE PAID TO THE APPLICANT DATED 08/08/2017.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (K) FEE PAID TO THE APPLICANT DATED 08/09/2017.

Annexure R1(IV) A TRUE COPY OF THE SALARY VOUCHER DATED 05/12/2016 SIGNED BY THE APPLICANT.

Annexure R1(IV)(A) A TRUE COPY OF THE SALARY VOUCHER DATED 01/03/2017 SIGNED BY THE APPLICANT.

Annexure R1(V) A TRUE COPY OF THE MINUTES OF THE ANNUAL GENERAL BODY MEETING OF THE COMPANY HELD ON 13/09/2014.

Annexure R1(VI) A TRUE COPY OF THE SALARY VOUCHER DATED 21/03/2017 SIGNED BY SMT. SHEELADEVI.

Annexure R1(VI)(A) A TRUE COPY OF THE SALARY VOUCHER DATED 03/05/2017 SIGNED BY SMT. SHEELADEVI.

Annexure R1(VI)(B) A TRUE COPY OF THE SALARY VOUCHER DATED 01/06/2017 SIGNED BY SMT. SHEELADEVI.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING FEE PAID TO THE APPLICANT DATED 14/10/2016.

Annexure R1(VI)(C) A TRUE COPY OF THE SALARY VOUCHER DATED 05/07/2017 SIGNED BY SMT. SHEELADEVI.

Annexure R1(VII) A TRUE COPY OF THE SALARY VOUCHER DATED 20/02/2014 SIGNED BY SRI. HEMANTH GOPI.

Annexure R1(VIII) THE DETAILS OF PAYMENT MADE BY THE RESPONDENT COMPANY TO THE APPLICANT AR 53/20

THROUGH HIS BANK ACCOUNT.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (A) FEE PAID TO THE APPLICANT DATED 04/11/2016.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (B) FEE PAID TO THE APPLICANT DATED 20/12/2016.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (C) FEE PAID TO THE APPLICANT DATED 11/01/2017.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (D) FEE PAID TO THE APPLICANT DATED 14/02/2017.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (E) FEE PAID TO THE APPLICANT DATED 03/03/2017.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (F) FEE PAID TO THE APPLICANT DATED 28/04/2017.

Annexure R1(III) A TRUE COPY OF THE RECEIPT FOR SITTING (G) FEE PAID TO THE APPLICANT DATED 19/05/2017.