Madras High Court
Mr.M.Sivakumar vs Mr.R.Guruswamy on 18 April, 2024
Author: M.Sundar
Bench: M.Sundar
C.M.A.No.949 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.M.A.No.949 of 2024
&
C.M.P.No.8906 of 2024
in C.M.A.No.949 of 2024
Mr.M.Sivakumar ... Appellant
Vs.
1.Mr.R.Guruswamy
S/o.Ratnavel
2.Mr.R.Gurumoorthy
S/o.Ratnavel
3. M/s.R.H.R.Aishwaryam
27, State bank Road
Coimbatore – 641 018
Represented by its Sole Proprietor
Mr.M.Sivakumar
4. M/s.G.Sundravel & Brothers
Having Registered Office at
27, State Bank Road
Coimbatore – 641 018
Represented by its Partners
5. Mr. V.S.Gurusamy .. Respondents
[R3 an R4 deleted vide this order]
Civil Miscellaneous Appeal filed under Section 13(1)(a) of the
https://www.mhc.tn.gov.in/judis
1/9
C.M.A.No.949 of 2024
Commercial Courts Act, 2015 read with Section 37 of the Arbitration and
Conciliation Act, 1996 to set aside the order dated 04.04.2024 passed by
the learned Commercial Court (District Judge Cadre), Coimbatore in
Arb.Appln. No.9 of 2024.
For Appellant : Mr.S.Silambanan
Senior counsel
for Mr.K.Vasanthanayagam
For Respondents : Mr.R.Vidhya Shankar
assisted by Mr.Manoj G for R1 and R2
Mr.M.Manohar for R5
JUDGMENT
(Judgment of the Court was delivered by M.Sundar, J.) Captioned main 'Civil Miscellaneous Appeal' ['CMA' for the sake of brevity] is directed against an order dated 04.04.2024 made in Arb.Appln.No.9 of 2024 {Section 9 application i.e., Section 9 of 'The Arbitration and Conciliation Act, 1996 (Act No.26 of 1996)' [hereinafter 'A and C Act' for the sake of convenience and clarity]} on the file of 'Commercial Court [District Judge Cadre] Coimbatore' [hereinafter 'said Commercial Court' for the sake of brevity and convenience] and this '04.04.2024 order' shall hereinafter be referred to as 'impugned order' for the sake of brevity, convenience and clarity.
2. Captioned 'Civil Miscellaneous Petition' ['CMP' for the sake of brevity] thereat has been filed with an interim prayer pending main CMA but this common consent order will dispose of both i.e., captioned CMA and CMP. https://www.mhc.tn.gov.in/judis 2/9 C.M.A.No.949 of 2024
3. Captioned matter was listed in the Admission Board yesterday. Mr.S.Silambanan, learned Senior Advocate instructed by counsel on record for the appellant and Mr.R.Vidhya Shankar, learned counsel for caveators (R1 and R2) were before us and after some submissions, the matter stood over to today (18.04.2024).
4. As it is a consent order, suffice to say that arbitrable disputes have arisen between four first cousins, who are parties to a partnership deed dated 02.07.2020. Clause 18 of this Partnership Deep is the arbitration clause and the same reads as follows:
'18. In case of difference of opinion arising among the parties, during the continuance of the partnership or on the termination there of, the same shall be decided by a Sole Arbitrator if the parties can agree to such a one, otherwise by Arbitrators to be appointed in accordance with the INDIAN ARBITRATION ACT AND CONCILIATION ACT 1996.'
5. The aforementioned Clause 18 is the 'arbitration agreement' between the parties within the meaning of Section 2(1)(b) read with Section 7 of 'A and C Act'. We are not delving into facts further or the arbitrable disputes as this is a consent order.
https://www.mhc.tn.gov.in/judis 3/9 C.M.A.No.949 of 2024
6. The following order is made by consent of all the counsel before us:
(i) Respondent No. 3 i.e., 'R.H.R.Aishwaryam', which we are informed is the name and style in which appellant Mr.M.Sivakumar, carrying on business as sole proprietor and R4 i.e., 'M/s.G.Sundravel & Brothers', which is a partnership firm constituted by the four first cousins stand deleted from the array of parties by consent. We make it clear that this deletion is for the purpose of this order and questions in this regard are left open if it is raised before the Hon'ble Arbitrator to be appointed (infra) vide this order;
(ii) the above deletion leaves this Court with the four first cousins i.e., Thiru.M.Sivakumar, son of Mr.G.Manikkavel [appellant], Thiru.R.Guruswamy and Mr.R.Gurumoorthy, sons of Mr.Ratnavel [R1 and R2] and Thiru.V.S.Gurusamy, son of Mr.Sundaravel [R5] as parties before us. Mr.S.Silambanan, learned Senior counsel led by Mr.K.Vasanthanayagan, counsel on record for appellant, Mr.R.Vidhya Shankar, who is today on 'VC' ['Videoconferencing'] platform (to be noted, this is a hybrid hearing, which is a daily/routine/regular feature in this Court) for https://www.mhc.tn.gov.in/judis 4/9 C.M.A.No.949 of 2024 R1 and R2 and Mr.M.Manohar, learned counsel with address for service at No.62, New Additional Law Chambers, High Court Buildings, Chennai – 104 [Mob: 94459 88470] representing R5 are before this Court;
(iii) By consent of all parties, Hon'ble Mr.Justice K.Ravichandrabaabu (Retd.), a former Judge of this Court i.e., Madras High Court, residing at 1D, Crescent Castle, 13/6 II Crescent Park Road, Gandhi Nagar, Adyar, Chennai-600 020 (Mobile Numbers: 94980 33336, 94440 11433) is appointed as sole arbitrator qua aforementioned arbitration agreement i.e., clause 18 of partnership deed 02.07.2020;
(iv) The impugned order i.e., order dated 04.04.2024 made in Arb.Appln.No.9 of 2024 on the file of said Commercial Court is set aside and Arb.Appln No.9 of 2024 on the file of said Commercial Court will stand closed. It is made clear that it is set aside without expressing any view or opinion one way or the other and setting aside is solely for the purpose of enabling Hon'ble sole Arbitrator to take up interim prayer plea (already made before said Commercial Court) as a plea under Section 17 of A and C Act and decide it on its own merits and in accordance https://www.mhc.tn.gov.in/judis 5/9 C.M.A.No.949 of 2024 with law at his discretion;
(v) We request Hon'ble sole Arbitrator to sit at his earliest convenience, preferably on Monday i.e., 22.04.2024 to hear the Section 17 plea as we have set aside the impugned order;
(vi) As regards main arbitrable disputes, it is open to parties to file pleadings and all that will be the domain of Hon'ble sole Arbitrator;
(vii) As regards deleted proprietary concern, partnership firm, a private limited company which goes by the name RHR Hotels (CBE) Pvt. Ltd., another private limited company which goes by the name RHR Hotels Private Limited and / or any other entity, firm or concern adding the same in the arbitration proceedings will be at the discretion of Hon'ble Arbitrator. All questions in this regard are left open for Hon'ble sole Arbitrator to decide;
(viii) It is open to Hon'ble Arbitrator to decide on the venue including the option of Coimbatore for one/some or all sittings. It is open to Hon'ble Arbitrator to hold virtual hearing also;
(ix) Though shares of four cousins are not equal, we https://www.mhc.tn.gov.in/judis 6/9 C.M.A.No.949 of 2024 deem it appropriate to say that the expenses and fee of Hon'ble Arbitrator shall be borne in equal moieties by all the four parties.
Fee of Hon'ble Arbitrator will be as per Schedule IV of A and C Act;
(x) As regards expenses such as travel (flight or rail tickets), hotel, local transport and other expenses, the same will be on actuals befitting the stature of Hon'ble Arbitrator as former Judge of this Court and the same will also be borne in equal moieties either by sharing for each sitting or by rotating the absorption of expenditure sitting wise.
(xi) All parties before us agreed that they will not precipitate matters by filing any other legal proceedings until the arbitration proceedings are kick started;
(xii) Considering the relationship between the parties and the nature of the arbitrable disputes which have been projected before us, we request the Hon'ble Arbitrator to consider resorting to Section 30 of A and C Act albeit entirely at his discretion;
https://www.mhc.tn.gov.in/judis 7/9 C.M.A.No.949 of 2024 Captioned CMA and CMP are disposed of in the aforesaid manner in and by this consent and there shall be no order as to costs.
(M.S.J.) (K.G.T.J.)
18.04.2024
P.S. I: Upload forthwith
P.S.II : All concerned including the Registry of Madras High Court to act forthwith on the uploaded soft copy of this proceedings as uploaded in the official website of this Court. To be noted, the soft copies uploaded in the official website of this Court are water marked, besides being QR Coded.
gpa To The Commercial Court (District Judge Cadre) Coimbatore https://www.mhc.tn.gov.in/judis 8/9 C.M.A.No.949 of 2024 M.SUNDAR.J., and K.GOVINDARAJAN THILAKAVADI, J., GPA C.M.A.No.949 of 2024 & C.M.P.No.8906 of 2024 in C.M.A.No.949 of 2024 18.04.2024 https://www.mhc.tn.gov.in/judis 9/9