Kerala High Court
Kerala Football Association vs M.Rajeev Kumar on 3 January, 2022
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
OP(C) NO. 634 OF 2021
CMA(Arb) 7/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - V, THIRUVANANTHAPURAM
PETITIONER/S:
KERALA FOOTBALL ASSOCIATION
(REG.NO.Q 197/89), VIP SECTOR A, 1ST FLOOR, JNI
STADIUM, COCHIN - 682017, REP. BY ITS PRESIDENT.
BY ADVS.
PRAVEEN K. JOY
SRI.E.S.SANEEJ
SRI.M.P.UNNIKRISHNAN
SMT.M.K.SAMYUKTHA
SRI.N.ABHILASH
SHRI.DEEPU RAJAGOPAL
SRI.T.A.JOY
RESPONDENT/S:
1 M.RAJEEV KUMAR
AGED 54 YEARS
THE FORMER PRESIDENT, THIRUVANANTHAPURAM
DISTRICT, FOOTBALL ASSOCIATION, S/O. MUKUNDAN,
PADMAVILAS, TC 14/252, POONTHI ROAD,
KUMARAPURAM, TRIVANDRUM - 695 011.
2 S. JOSEPH
AGED 50 YEARS
THE FORMER SECRETARY, THIRUVANANTHAPURAM
DISTRICT FOOTBALL ASSOCIATION, S/O. SILVA,
AARAMAM, ADIMALATHURA, CHOWARA P. O.,
TRIVANDRUM - 695501.
3 THIRUVANANTHAPURAM DISTRICT FOOTBALL ASSOCIATION
GV RAJA BUILDING, OPP. MUSEUM GARDENS,
THIRUVANANTHAPURAM - 695033, REP. BY G.
MOHANAN, EC MEMBER OF KFA-IN-CHARGE.
4 ADDL.R4.REFEEK.K.M
SOUGHT TO BE IMPLEADED
5 ADDL.R5.SELVAKUMAR.C
SOUGHT TO BE IMPLEADED
BY ADVS.
R1, R2 SRI.ANOOP BHASKAR
O.P.(C) No.634 of 2021
-2-
THOMAS ABRAHAM
ANIL K.NAIR
MERCIAMMA MATHEW
ASWIN.P.JOHN
R.ANANTHAPADMANABAN
THAYYIB SHA P.S.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 07.10.2021,
THE COURT ON 03.01.2022 DELIVERED THE FOLLOWING:
O.P.(C) No.634 of 2021
-3-
JUDGMENT
Dated this the 3rd day of January, 2022 An internal dispute between the petitioner, the Kerala Football Association and office bearers of the third respondent, Thiruvananthapuram District Football Association, resulted in the respondents invoking the Arbitration Clause in Article 54 of the Kerala Football Association's Constitution, by moving an application under Section 9 of Arbitration and Conciliation Act, 1996 ('the Act' for short). The application was taken on file as CMA No.7 of 2021 of the Additional District Court-V, Thiruvananthapuram. Therein, the District Court issued Ext.P2 order restraining the petitioner from conducting its executive committee meeting scheduled to be held on 18.01.2021 and from taking any decision with respect to the agenda mentioned in the notice dated 04.01.2021. O.P.(C) No.634 of 2021 -4-
2. The petitioner entered appearance and moved I.A.No.4 of 2021 challenging maintainability of the CMA mainly on the ground of lack of jurisdiction, the seat of Arbitration being at Ernakulam, as per Article 1(2) of KFA'S Constitution. The District Court having repelled the challenge by Ext.P5 order, the original petition is filed.
3. Adv.Praveen K.Joy appearing for the petitioner contended that as per Article 1(2), the Regional office and Head Quarters of the KFA are located at Ernakulam city and therefore, the seat of Arbitration can only be at Ernakulam. Being so, the District Court, Ernakulam alone is conferred with jurisdiction to entertain an application under Section 9 of the Act. In support of the contention, reliance is placed on the decisions in Bharat Aluminum Company v. Kaiser Aluminum Technical Services Inc.[(2012) 9 O.P.(C) No.634 of 2021 -5- SCC 552] and BGS SGS Soma JV v. NHPC Ltd [(2020) 4 SCC 234].
4. Adv.Anoop Bhasker appearing for the respondents contended that as per Section 20(3) of the Act, the Arbitral Tribunal is entitled to decide the seat of Arbitration in the absence of an agreement between the parties regarding such seat. According to the learned Counsel, the registered office of the petitioner Association being at Ernakulam is not relevant for deciding the seat of Arbitration. It is argued that the third respondent is situated at Thiruvananthapuram and the special general body meeting, which took the impugned decision, was also held at Thiruvananthapuram. As such, the cause of action had arisen at Thiruvananthapuram and hence, the seat of Arbitration can only be at Thiruvananthapuram.
5. Adv.Thomas Abraham submitted that the O.P.(C) No.634 of 2021 -6- petitioners in I.A.No.3 of 2021 are necessary parties and should therefore be impleaded as additional respondents. It is pointed out that as a result of the interim order passed by the District Court, functioning of the petitioner Association has come to a standstill, which in turn has affected the game of football in the State and the future of a large number of budding footballers.
6. I find substantial force in the contention of the learned Counsel for the respondents that in the absence of an agreement between the parties with respect to the seat of Arbitration, the fact that the registered office of the KFA is at Ernakulam cannot lead to the presumption that the parties had intended the seat of Arbitration also to be at Ernakulam. As per Section 20(1), the parties are free to agree on the place of arbitration. In the absence of any such agreement, the place of arbitration O.P.(C) No.634 of 2021 -7- shall be determined by the Arbitral Tribunal having regard to the circumstances of the case, including the convenience of the parties. The legal position, as regards the court of competent jurisdiction, in cases where the parties have not determined the seat of Arbitration, was considered by the High Court of Delhi in Aarka Sports Management Pvt. Ltd. vs Kalsi Buildcon Pvt. Ltd; Delhi High Court [2020 SCC OnLine Del 2077]. After detailed consideration of the relevant provisions it was held that, if the parties have not agreed on the seat of the arbitration, the Court competent to entertain an application under Section 11 of the Arbitration and Conciliation Act would be the "Court" as defined in Section 2(1)(e) of the Act read with Sections 16 to 20 of the Code of Civil Procedure.
7. During the course of arguments, it was submitted that the arbitration request filed by O.P.(C) No.634 of 2021 -8- the petitioner before this Court was disposed on 11.10.2021 by nominating Sri.D.Premachandran, Deepanjali, TC47/1655 (Old No.TC.19/1143(2)), Thekkedam Lane, Thamalam, Poojappura P.O, Thiruvananthapuram - 695 012 as the Sole Arbitrator. Further, the question whether third parties (additional respondents in I.A No. 3 of 2021) are liable to be impleaded was also considered and left open for the Arbitrator to adjudicate.
8. In view of this development and in terms of Section 20(b) of the Act, decision with respect to the seat of arbitration has to be left open for the Arbitrator to decide. As observed in the order nominating the Arbitrator, entitlement of the third parties to get impleaded is also to be decided by the Arbitrator.
On merits also, I find no reason to interfere with the impugned order of the District Court. Moreover, this Court having nominated an O.P.(C) No.634 of 2021 -9- Arbitrator, the dispute with respect to the seat of Arbitration has lost its relevance.
For the aforementioned reasons, the original petition is dismissed.
sd/-
V.G.ARUN JUDGE Scl/ O.P.(C) No.634 of 2021 -10- APPENDIX OF OP(C) 634/2021 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE PETITION NUMBERED AS IA 4/2021 IN CMA 7/2021 OF DISTRICT COURT, THIRUVANANTHAPURAM DATED 19.01.2021.
EXHIBIT P2 THE TRUE COPY OF THE INTERIM ORDER DATED 13.1.21 IN IA 1/21 IN CMA(ARB) 7/21 OF ADDITIONAL DISTRICT AND SESSION JUDGE -V, TRIVANDRUM.
EXHIBIT P3 THE TRUE COPY OF THE CMA(ARB) 7/21 OF ADDITIONAL DISTRICT AND SESSION JUDGE
-V, TRIVANDRUM.
EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT IN OPC 301/2021 DATED 02.02.2021.
EXHIBIT P5 THE TRUE COPY OF THE ORDER IN IA 4/2021 IN CMA(ARB) 7/2021 DATED 22.02.2021.
EXHIBIT P6 THE TRUE COPY OF THE PROCEEDINGS DATED 22.02.2021 IN CMA(ARB) 7/2021 OF ADDITIONAL DISTRICT AND SESSIONS COURT
-V, TRIVANDRUM.
EXHIBIT P7 TRUE PHOTOCOPY OF THE LETTER OF ACCEPTANCE ISSUED BY THE SOLE ARBITRATOR DAGTED 20/3/2021 EXHIBIT P8 TRUE PHOTOCOPY OF THE NOTICE OF ENQUIRY ISSUED BY THE SOLE ARBITRATOR DATED 20/3/2021 EXHIBIT P9 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF ARTICLE 1 OF THE KERALA FOOTBALL ASSOCIATION CONSTITUTION EXHIBIT P10 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF ARTICLE 4 OF THE KERALA FOOTBALL ASSOCIATION CONSTITUTION EXHIBIT P11 TRUE PHTOCOPY OF THE RELEVANT PAGE OF ARTICLE 16 OF THE KERALA FOOTBALL ASSOCIATION CONSTITUTION EXHIBIT P12 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF ARTICLE 51 OF THE KERALA FOOTBALL ASSOCIATION CONSTITUTION O.P.(C) No.634 of 2021 -11- EXHIBIT P13 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF ARTICLE 54 OF THE KERALA FOOTBALL ASSOCIATION CONSTITUTION EXHIBIT P14 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF ARTICLE 23 OF THE DISTRICT FOOTBALL ASSOCIATION RULES AND REGULATIONS