Kerala High Court
M.K.Anandavally vs K.T.Soman on 11 July, 2016
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938
OP(C).No. 3218 of 2013 (O)
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OS 325/2012 OF PRINCIPAL MUNSIFF COURT-I, KOZHIKODE
....
PETITIONER(S):
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M.K.ANANDAVALLY, AGED 67 YEARS,
W/O.GANGADHARAN NAIR, RESIDING AT AKHILAM,
METHALE PARAMBA, GOVINDAPURAM,
VALAYANAD AMSOM DESOM OF KOZHIKODE TALUK.
BY ADVS.SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENT(S):
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1. K.T.SOMAN,
S/O.APPU NAIR, RESIDING AT KOLADITHAZHAM HOUSE,
P.O.KURUVATTOOR, KURUVATTOR AMSOM DESOM,
KOZHIKODE-673 611.
2. K.UDAYABHANU,
S/O.BALAKRISHNAN NAIR, RESIDING AT SARATH NIVAS,
SANTHINIKETAN COLONY, P.O.GOVINDAPURAM,
KOZHIKODE-673 016.
3. M/S.MALABAR SCALES AND SERVICES,
A REGISTERED FIRM HAVING ITS OFFICE AT 8/1117,
CONVENT ROAD, NAGARAM AMSOM DESOM,
KOZHIKODE-673 032, REPRESENTED BY ITS
MANAGING PARTNER K.UDAYABHANU.
BY ADVS. SRI.K.B.SIVARAMAKRISHNAN
MRS.S.SREELAKSHMY
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD
ON 11-07-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
OP(C).No. 3218 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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P1: TRUE COPY OF THE REPLY NOTICE SEND BY RESPONDENTS 1 AND 2
TO THE COUNSEL FOR THE PETITIONER.
P2: TRUE COPY OF THE PLAINT IN ORIGINAL SUIT.
P3: TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.2905/12.
P4: TRUE COPY OF THE COUNTER STATEMENT FILED BY THE
PETITIONER.
P5: TRUE COPY OF THE ORDER DTD.20.12.2012.
P6: TRUE COPY OF THE IA.948/2013 SEEKING TO REVIEW EXT.P5
ORDER.
P7: TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENTS
1 AND 2.
RESPONDENT(S)' EXHIBITS:
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
K.HARILAL, J.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
O.P.(C). No.3218 of 2013
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Dated this the 11th day of July, 2016
JUDGMENT
~ ~ ~ ~ ~ The petitioner is the plaintiff in O.S.No.325/2012 on the files of the Principal Munsiff's Court-I, Kozhikode as well as the respondents in I.A. No.2905/2012 filed therein by the respondents herein, who are the defendants in the above suit. The aforesaid suit is one for rendition of account and injunction, restraining the defendants from entering into the plaint schedule shop room and also for obstructing the plaintiff/petitioner from the possession and enjoyment over the plaint schedule shop room. The respondents filed I.A. No.2905/2012 under Section 8 of the Arbitration and Conciliation Act seeking reference of the dispute to the Arbitrator by invocation of Clause 17 of the Partnership Deed.
After considering the objection raised by the OP(C).3218/13 :2: petitioner, the court below allowed the said application by Exts.P5 order. Aggrieved by Ext.P5,
they have preferred a review petition and the same was also got dismissed by Ext.P8 order. The legality, propriety and correctness of the reasons, whereby the court below referred the dispute for arbitration, are under challenge in this original petition.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
3. The learned counsel for the petitioner advanced arguments contending that a third party interest is also involved in the dispute. So, the court below ought not have referred the dispute for arbitration under Clause 17 of the Partnership Deed.
4. Per contra, the learned counsel for the respondents advanced arguments to justify the reasonings whereby the court below allowed the said application. The respondents contended that the alleged third party is not a party in the suit as well as OP(C).3218/13 :3:
the subject matter of the dispute. Therefore, his interest need not be taken into consideration while determining the scope of reference under Section 8 of the Arbitration and Conciliation Act.
5. In view of the submissions made at the Bar, the point to be considered is, whether there is any illegality or impropriety in the order referring the matter for arbitration invoking Clause 17 of the Partnership Deed.
6. Going by Ext.P2 copy of the plaint, it is seen that the suit is filed by the petitioner alone and the reliefs sought for are rendition of account and injunction against the respondents.
7. The learned counsel for the petitioner produced the partnership deeds executed between Gangadharan Nair and the respondents dated 28.2.1994 and subsequent partnership deed executed between the petitioner and the respondents, after the death of Gangadharan Nair. It is the case of the petitioner that OP(C).3218/13 :4:
the 3rd respondent firm was originally a proprietary concern run by the husband of the petitioner, by name Gangadharan Nair, in the plaint schedule property and in the partnership agreement the leasehold right of the petitioner's husband was not made an asset. When the petitioner's husband Gangadharan Nair became ill, he was assisted by the respondents in the business and subsequently, he entered into a partnership agreement with the respondents 1 and 2 with respect to the business. On the death of the said Gangadharan Nair, the petitioner entered into subsequent partnership deed dated 12.12.2006 and the firm is being run under the terms and conditions contemplated under the subsequent partnership deed dated 12.12.2006.
8. The main contention raised by the petitioner in this original petition is that after the death of Gangadharan Nair, tenancy right devolved upon the petitioner and her son Akhilesh. It is also contended that even after the execution of a partnership deed, OP(C).3218/13 :5:
the petitioner's husband was paying rent and thereafter the petitioner was paying rent to the petition schedule property. The licence of the petitioner's husband or the tenancy which he had over the petition schedule property was not made an asset of the partnership deed. In view of the above admission, this Court is of the view that if the tenancy right which he had over the petition schedule property was not made an asset of the partnership, the tenancy right devolved upon the legal heirs of the deceased Gangadharan Nair will not come within the purview of the subject matter of the partnership deed.
9. The above view is supported by two subsequent events. After the death of Gangadharan Nair, the partnership was re-constituted by partnership deed dated 12.12.2006 between the petitioner and the respondents. Therefore, by the death of Gangadharan Nair, no kind of right devolved upon his son Akhilesh with respect to the subject matter of the partnership OP(C).3218/13 :6:
deed. The suit is filed by the petitioner alone as a partner of the firm in tune with subsequent partnership deed dated 12.12.2006. In short, the said Akhilesh is an alien to the subject matter of the partnership deed and the relief sought for is rendition of account, a matter within the scope of partnership deed only. Even if any kind of tenancy right devolved upon the said Akhilesh, that will not be a subject matter of the arbitration reference. Therefore, even if he had any kind of tenancy right as the legal heir of the deceased Gangadharan Nair, that right will not be affected by the arbitration, in view of the specific relief sought for by the petitioner. In other words, the relief sought for are within the ambit of the subject matter of the partnership deed only.
10. In the decision reported in P. Anand Gajapathi Raju and others v. P.V.G. Raju (Dead) and others [2000 (4) SCC 539], the Apex Court held that where there is an arbitration clause in the agreement, it is obligatory OP(C).3218/13 :7:
for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original petition after such an application is made except to refer the dispute to an Arbitrator.
11. The learned counsel for the petitioner cited the decision reported in Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya and Another [(2003) 5 SCC 531]. But, the proposition laid down in the aforesaid decision is not applicable to the instant case, because, there, there was a bifurcation of the subject matter. Here, there is no question of bifurcation of subject matter as the reliefs sought for are confined to the subject matter of the agreement dated 12.12.2006 only.
12. In the above analysis, the court below is justified in referring the matter for arbitration, invoking Clause 17 of the Partnership Deed dated 12.12.2006. I do not find any kind of illegality or impropriety in the impugned orders. In the lack of any OP(C).3218/13 :8:
error apparent on the face of the record, the court below is justified in dismissing the review petition also, by Ext.P8 order.
Consequently, this original petition is dismissed.
Sd/-
K. HARILAL, JUDGE okb.