IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Arb.A.No. 1 of 2007() --------------------- AGAINST THE ORDER DATED 11.10.2006 IN IA 1917/2006 . IN OPARB.242/2005 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT/2ND RESPONDENT/2ND RESPONDENT: ------------------------------------------------------------------------- R.SANTHA PRABHU, THARA PARAMBIL HOUSE, OPP. S.S.KALAMANDIR, T.D.ROAD, KOCHI-35, NOW RESIDING AT 40/7176, 1ST FLOOR, T.D.ROAD, NEAR T.D.TEMPLE, ERNAKULAM, COCHIN-35. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SMT.SHIJA SHERIDAN SRI.S.VINOD BHAT RESPONDENT(S): PETITIONERS/PETITIONERS: -------------------------------------------------------------------- 1. VIJAYA K. PRABHU, W/O. L.K.PRABHU, AGED 57, "LEKSHANA", CONVENT ROAD, ERNAKULAM. 2. MEERA BADARISH, W/O. BADARISH KRISHNA, PARTNER, M/S. A.R. PRABHU & BROS., ERNAKULAM, REP. BY HER POWER OF ATTORNEY HOLDER P.S.DIVAKARA PAI, S/O. LATE SREENIVASA PAI, AGED 64, CHARTERED ACCOUNTANT, RESIDING AT POOMARATHINGAL, KUSUMAGIRI P.O., ERNAKULAM, PIN-682 030. R1, R2 BY ADV. SRI.M.P.RAMNATH. THIS ARBITRATION APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ Arbitration Appeal No.1 of 2007 ---------------------------------------------- Dated, this the 30th day of June, 2009 J U D G M E N T K.M.Joseph, J. This appeal is filed against the order dated 11.10.2006 in I.A.No.1917/2006. That was an application filed under Rules 1 and 2 & Order XXXIX and Section 151 of C.P.C. seeking a direction to the appellant to surrender the keys of the shop building in question before the Court to be kept in safe custody until the entire partnership disputes are settled under due process of law. This I.A. had been rejected earlier. The said order was challenged in W.P.(C) No.22408/2006. The writ petition was allowed and the relevant portion of the order is extracted hereunder: “ ......The question arose for consideration is not whether the firm conducted business in the premises or not but whether there is prima facie material to show that the premises in question can be considered as an asset of the firm. Unfortunately that question was not answered by the learned District Judge. The learned District Judge dismissed I.A.No.1917/2006 but at the same Arb.Appeal No.1/2007 -2- time issued a direction to the petitioner not to surrender the key to the landlord till the firm is dissolved in appropriate proceedings. It is also further held that the petitioner has no right to start any separate business as their own in the premises. These two orders cannot stand together. The prayer in the petition was to produce the key in the court. If the court below was the opinion that such prayer cannot be allowed he should have dismissed that application. If there is some materials to show that the disputed room is also an asset of the firm he should have allowed the application. But the learned District Judge though dismissed the application virtually passed an order of injunction. So that order cannot be allowed to stand. For that purpose the case is to go back.” 2. It is pursuant to the same that the learned District Judge has proceeded to consider the matter and after considering the same had directed the Advocate Commissioner to surrender the keys before the Court for safe custody until further orders. 3. We heard Sri.R.D.Shenoy learned senior counsel for the appellant and Sri.M.P.Ramnath, learned counsel for the respondent. Learned senior counsel would point out that the prayers in the O.P. (Arb.) 242/2005 was for restraining the appellant from selling transferring or otherwise parting with possession of the stock in trade and the assets of Arb.Appeal No.1/2007 -3- the firm A.R.Prabhu and Bros. and surrendering the building to the landlord of the building namely, Thirumala Devaswom and for appointment of Advocate Commissioner. He referred to the litigation between the parties. He would further contend that the landlord of the property namely Thirumala Devaswom had instituted a suit with all the parties to the Arbitration Appeal and a decree has been obtained. (No doubt learned counsel for the respondent would point out that an appeal is carried against the same and it is stayed). As already noted earlier the order passed in the very same I.A. was the subject matter of the writ petition where the learned Single Judge has proceeded to take the view interalia that if there are material to show that the property in question is part of the partnership that I.A. should be allowed. We find from the order that the Court found formidable circumstances to find that the firm has leasehold right over the premises and for that reason it was thought that tenancy premises belonged to the firm. We do not think that appellant can persuade us to hold that there are no materials to take the view that the tenanted premises belonged to the firm. But, learned senior Arb.Appeal No.1/2007 -4- counsel for the appellant would then point out that the appellant apprehended that what is stated in the order may be taken as the basis by the Arbitrator to decide the issue as to what is arbitrable by him. He would submit that when an arbitration is commenced by issuance of notice setting out the claims, it is not open to the Arbitrator to enlarge the scope of arbitration and he must confine to the terms of what is stated in the notice and he would submit that the Arbitrator may not act on the basis of the observations contained in the order. That is to say he would submit that the findings of the court below prima facie as they are should not be the basis for the Arbitrator to decide the arbitrability of the claims. We feel that we need not interfere with the order as such. We need only clarify that the question as to whether the Arbitrator has authority to decide a particular claim in the matter will be decided by the Arbitrator strictly in accordance with law and it will not be based on anything stated in the impugned order. Subject to the same the appeal is dismissed. No order as to costs. All pending interlocutory applications are Arb.Appeal No.1/2007 -5- dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS