IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 AR.No. 50 of 2010() ------------------- APPLICANT : --------------- ALEYAMMA JOHN, W/O.JOHN MATHAI PUTHIYAVEEDU, M.M.JUNCTION, PANDALAM P.O. BY ADV. SRI.N.SUKUMARAN, SENIOR ADVOCATE SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): --------------- 1. JOHN MATHAI, S/O.LATE G MATHAI C/O.PUTHIYAVEETTIL FINANCIERS, VASANTHAM TOWERS PEROORKADA, THIRUVANANTHAPURAM 695 005 2. AJINU ACHI JOHN D/O.JOHN MATHAI PUTHIYAVEEDU, M.M.JUNCTION, PANDALAM P.O. ADV. SRI.V.C.JAMES FOR R1 THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ A.R.No.50 of 2010 ------------------------------- Dated this the 14th day of June, 2011 O R D E R The case of the applicant is the following : A partnership was formed under the name and style Puthiyaveettil Financiers as per the partnership deed dated 8.5.1996 with four partners. The applicant, her husband John Mathai (first respondent), P.M.Rajan and Valsala Rajan were the partners. The partnership was reconstituted on 6.6.2002 as per Annexure A1 partnership deed dated 6.6.2002. Rajan and Valsala Rajan retired from the partnership as per Annexure A1 and the second respondent Ajinu Achi John and Ajith Mathew (daughter and son of the applicant and the first respondent) were inducted as partners. Ajith Mathew passed away on 18.2.2006. The partnership continued with the three surviving partners. The relationship between the applicant and the first A.R.No.50/2010 2 respondent became strained as a result of the illicit relationship of the first respondent with a female employee of the firm. It is stated that a daughter was born to the first respondent in that illicit relationship. It is alleged that the applicant deposited ` 10 lakhs with the firm. The first respondent was the Managing Partner of the firm. The applicant sent notices to the first respondent demanding dissolution of the partnership and for settlement of accounts. No reply was sent to Annexures A2 and A3 notices. In Annexure A3 notice, the applicant nominated Sri.P.S.Divakaran, Retired District Judge as the Arbitrator. No reply was sent by the first respondent to that notice also. Invoking clause 16 of Annexure A1 partnership deed, this Arbitration Request is filed to appoint an Arbitrator. 2. Clause 16 of Annexure AI partnership deed reads as follows : “16. Disputes, if any, arising between the partners or A.R.No.50/2010 3 their legal representative(s) regarding the interpretation of any of the above clauses of this deed, or the rights and liabilities thereunder or in relation to any other matters, whatsoever touching the partnership shall be referred to and settled by arbitration as per the provisions of the Indian Arbitration Act in force.” 3. The first respondent filed a counter affidavit in which it is, inter alia, contended as follows : The first respondent has not entered into any partnership deed with the applicant on 8.5.1996. There was no reconstitution deed as per Annexure 1. No such firm was existing. The first respondent was not the Managing Partner of the firm since there was no partnership at all as alleged by the applicant. The first respondent was running a proprietary concern under the name and style 'Puthiyaveettil Financiers' since November, 1994. That concern is being run even now, which belongs exclusively to the first respondent. Annexure A.R.No.50/2010 4 R1(A) licence is produced to show that the Inspecting Assistant Commissioner, Agricultural, Income tax and Sales Tax, Thiruvananthapuram issued licence to the petitioner to run Puthiyaveettil Financiers and that it was renewed from time to time. Annexure R1(B) is produced to show that the assessee for income tax is Puthiyaveettil Financiers by John Mathai, Proprietor. Annexure R1(B) relates to the assessment year 1995-96. Annexure R1(C) for the assessment year 2010-11 is produced to show that the said Financiers is the proprietary concern of the first respondent. The first respondent also relies on AnnexureR1(D) and Annexure R1(E) Lease Deeds to show that he had taken the premises on lease. The first respondent denied the allegations against him and the alleged illicit relationship. 4. The applicant filed a reply affidavit. Along with the reply affidavit, she produced copy of the partnership deed dated 8.5.1996 as Annexure A4. Annexure A4 contains the A.R.No.50/2010 5 signature and seal of the Inspecting Assistant Commissioner. Annexure A7 is the statement in Form 'G' submitted on behalf of Puthiyaveettil Financiers before the Sales Tax Department. It is stated that the signature of the first respondent appears therein in his capacity as the Managing Partner of the firm. It is also stated that the applicant filed O.P.No.137 of 2009 before the Family Court, Thiruvalla (Annexure A8) in which she stated in paragraph 4 that a partnership concern under the name and style Puthiyaveettil Financiers was commenced with the first respondent as the Managing Partner. It is submitted that in Annexure A9 objection to Annexure A8, there is no specific denial of the same. The applicant also relies on Annexure A10 receipt issued by Puthiyaveettil Financiers for having received ` 10 lakhs from the petitioner. It is stated that the first respondent has put his signature in his capacity as the Managing Partner. 5. The question to be considered is whether there was A.R.No.50/2010 6 a partnership, as alleged by the applicant, executed on 8.5.1996 and which was reconstituted on 6.6.2002. The partnership is not a registered partnership. The signature of John Mathai (first respondent) as seen in his affidavit is similar to the signature of John Mathai in Annexure A1 and Annexure A4 partnership deeds dated 6.6.2002 and 8.5.1996 respectively. The partnership deed dated 8.5.1996 was apparently produced before the Inspecting Assistant Commissioner. Before the Sales Tax Authorities, the first respondent submitted returns on behalf of Puthiyaveettil Financiers in his capacity as the Managing Partner. Annexure A10 receipt, which is a printed fixed deposit receipt of Puthiyaveettil Financiers, shows that the signatory therein was the Managing Partner. The signature found in Exhibit A10 resembles the signature of the first respondent in the affidavit filed by him. Moreover, there is no denial of the signature in Exhibit A10. The documents produced in the Arbitration Request would show that the partnership deeds A.R.No.50/2010 7 dated 8.5.1996 and 6.6.2002 were executed by the applicant, the first respondent and others. I reject the contention of the first respondent that no such partnership deeds were executed. 6. Since the partnership deeds were found to be genuine, then the next question to be considered is whether the dispute is arbitrable. The partnership deed contains an arbitration clause. Therefore, the request to appoint an Arbitrator is justified. The respondent has not responded to the request of the applicant to appoint an Arbitrator and therefore, the filing of the Arbitration Request is also justified. 7. Now the question remains as to who should be appointed as the Arbitrator. The applicant suggested that Sri.P.S.Divakaran, Prior District Judge may be appointed as the Arbitrator. The first respondent did not raise any contention that Sri.P.S.Divakaran cannot be appointed as A.R.No.50/2010 8 the Arbitrator. For the aforesaid reasons, the Arbitration Request is allowed. Sri.P.S.Divakaran, Retired District Judge, Panikkassery House, Kovilvattom Road, Ernakulam, Kochi - 31 is appointed as the Arbitrator. The Arbitrator would be free to fix his fee. K.T.SANKARAN JUDGE csl