Kerala High Court
Mary Jose vs Dr. Raju Mathew on 23 June, 2022
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.
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Arbitration Request No.96 of 2018
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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
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
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
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
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.
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