Kerala High Court
Mariyamma Jose vs Francis Thomas on 9 November, 2020
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942
AR.No.50 OF 2020
PETITIONER/S:
MARIYAMMA JOSE
AGED 74 YEARS
W/O. JOSE G, PLANTER, RESIDING AT KURIVINAKUNNEL,
ERATTAKULAM P O, ALATHUR TALUK, PALAKKAD DISTRICT-
678682.
BY ADV. SRI.BABY MATHEW
RESPONDENT/S:
1 FRANCIS THOMAS
AGED 70 YEARS
S/O. THOMAS, PLANTER, MANAGING PARTNER MESSERS GREEN
FIELD AGENCIES, C C S B ROAD, ALAPPUZHA 11, ALAPPUZHA
DISTRICT.
2 ROSY JAMES
AGED 65 YEARS
W/O. JAMES K GEORGE, BUSINESS, KURUVINAKUNNEL HOUSE,
EDAMATTAM, BHARANAMGANAM P O, KOTTAYAM DISTRICT-
686578.
R1 BY ADV. SRI.ROY CHACKO
R2 BY ADV. SRI.PRINCE J PANANAL
R2 BY ADV. SRI.P.S.SYAMKUTTAN
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON
09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AR.No.50 OF 2020
2
ORDER
The petitioner and the respondent are stated to be partners of M/s Greenfield Agencies of which the 1st respondent is the Managing Partner. It would appear that differences have arisen between the parties, during the course of working the partnership agreement and, accordingly, the petitioner has approached this Court seeking the appointment of an arbitrator in terms of S. 11 of the Arbitration and conciliation Act 1996( 'the Act' for short).
2. Through a counter affidavit filed on behalf of the 1st respondent, it is brought to my notice that while, there is no dispute with regard to the existence of the arbitration agreement between the parties as contained in the partnership agreement, the 1st respondent does not agree to the nomination of the sole arbitrator suggested by the petitioner.
3. I have heard the learned counsel appearing for the petitioner and also the learned counsel appearing for the 1st respondent.
On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that there is no dispute between the parties as regards the existence of the arbitration agreement. As per clause 21 of the partnership agreement, "any dispute or difference of opinion with regard to the construction of this deed, any clauses thereof or regarding the accounts maintained shall be settled by an arbitration under the Indian Arbitration Act, then in force'. The aforesaid clause has to be treated as the arbitration agreement and a sole arbitrator has to be appointed in accordance with Section 11(6) of the Act. In the absence of a consensus between the parties on the nomination of an arbitrator, AR.No.50 OF 2020 3 I deem it appropriate to nominate Smt.Lizamma Augustine, District Judge (Retired), as the sole arbitrator to arbitrate on the disputes that have arisen between the parties herein.
(a) Appointment of Arbitrator: Smt.Lizamma Augustine, District Judge (Retired) is hereby nominated to act as a Sole Arbitrator to decide the disputes and differences between the parties herein.
(b) Communication to Arbitrator of this order:
(i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the petitioner within one week from today of the order being uploaded.
(ii)In addition, within one week of this order being uploaded, the Registry will forward an ordinary copy of this order to the learned Sole Arbitrator at the following postal and email addresses:
Arbitrator Smt.Lizamma Augustine,
District Judge (Retired)
Address Moonjappilly,
Kochi - 682 018
Telephone No.0484-2393996,
Mobile 9495358999
AR.No.50 OF 2020
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(c) Disclosure: The learned Sole Arbitrator is requested to forward her statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to the Registrar of this Court, referencing this arbitration application, as soon as possible, and in any case sufficiently in advance of his entering upon the reference to her arbitration. That statement will be retained by the Registrar on the file of this application. Copies will be given to both sides.
(d) Appearance before the Arbitrator: Parties will appear before the learned Sole Arbitrator on such date and at such place as she nominates to obtain appropriate directions in regard to fixing a schedule for completing pleadings, etc.
(e)Contact/communication information of the parties:
Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator within one week of this order being uploaded. The information is to include a valid and functional email address.
(f) Application under Section 16: Liberty is granted to either side to file an application before the learned Sole Arbitrator under Section 16 in regard to any matter or claim and its arbitrability, jurisdiction and the arbitral tribunal competence.
AR.No.50 OF 2020 5
(g) Interim Application/s:
(i) Liberty is granted to both sides to make an interim application or interim applications including (but not limited to) interim applications under Section 17 of the 1996 Act before the learned Sole Arbitrator.
(ii) Any such application will be decided in such manner and within such time as the learned Sole Arbitrator deems fit.
(h)Fees: The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017.
(i)Sharing of costs and fees: Parties agree that all arbitral costs and the fees of the arbitrator will be borne by the two sides in equal shares in the first instance.
(j)Consent to an extension if thought necessary: Parties immediately consent to a further extension of up to six months to complete the arbitration should the learned Sole Arbitrator find it necessary.
(k) Venue and seat of arbitration: The venue will be in Ernakulam, Kerala as per the convenience of the parties and the Arbitrator.
(l)Contentions kept open: All contentions before the learned Sole Arbitrator are specifically kept open.
AR.No.50 OF 2020 6 This Arbitration Request is allowed.
Post on 24.11.2020 for the disclosure statement.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE SJ AR.No.50 OF 2020 7 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE PARTNERSHIP DEED DATED 22.06.1976.
ANNEXURE 2 TRUE COPY OF THE LAWYER NOTICE DATED 13.08.2019 ISSUED BY THE 1ST RESPONDENT. ANNEXURE 3 TRUE COPY OF THE REPLY NOTICE DATED 23.08.2019 ISSUED BY THE 1ST RESPONDENT.
ANNEXURE 4 TRUE COPY OF THE PROFIT AND LOSS ACCOUNT SENT BY THE 1ST RESPONDENT.
ANNEXURE 5 TRUE COPY OF THE NOTICE DATED 25.11.2019 ISSUED TO THE RESPONDENTS.
RESPONDENT'S/S EXHIBITS ANNEXURE R1(a) TRUE COPY OF THE PARTNERSHIP DEED DATED 1.03.1978 ANNEXURE R1(b) PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31.03.2014 ANNEXURE R1(c) PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31.03.2015 ANNEXURE R1(d) PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31.03.2016 ANNEXURE R1(e) PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31.03.2017 ANNEXURE R1(f) TRUE COPY OF THE RECONSTITUTED PARTNERSHIP DEED WHICH CAME INTO FORCE WITH EFFECT FROM 1.04.1992