IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 AR.No. 46 of 2010() ------------------- APPLICANT (S) ------------- K.T.MATHEW S/O.LATE K.M.THOMAS, KATTIVEETTIL HOUSE, IRITTY P.O.,KANNUR DISTRICT. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN RESPONDENT(S): --------------- 1. JOSEPH JOSEPH, AGED 55 YEARS, S/O.JOSEPH, OLAMATTAMKARIYIL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK 2. NISHAD MATHEW, AGED 31 YEARS, S/O.K.T.MATHEW,KATTIVEETTIL HOUSE, IRITTY P.O.,KANNUR DISTRICT. 3. NIDHIMON MAHTEW, AGED 28 YEARS, S/O.K.T.MATHEW, KATTIVEETTIL HOUSE, IRITTY P.O.,KANNUR DISTRICT. 4. HIGHWAY RESORT (PUTHUKKAD) IN THRISSUR DISTRICT, HIGHWAY RESORT PUTHUKKAD, THRISSUR DT,REP.BY ITS MANAGING PARTNER, JOSEPH JOSEPH. ADV. SRI.K.C.CHARLES FOR R1 SRI.M.POLY MATHAI FOR R1 SRI.P.CHELLAPPAN FOR R1 SRI.E.N.HARI FOR R1 SRI.VIMAL K.CHARLES FOR R1 SMT.A.T.RENJU FOR R1 THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Arbitration Request No. 46 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 10th day of January, 2011. O R D E R The petitioner in this arbitration request is a partner of a firm. He has filed this arbitration request for appointment of an arbitrator on the ground that disputes have arisen between the partners of the firm, which, as per the terms of the partnership deed, has to be referred for arbitration in view of the arbitration clause contained in the partnership deed. 2. Two counter affidavits have been filed by the 1st respondent, who is the contesting party. The contention urged before me by the 1st respondent is that there is no arbitration agreement between the parties and therefore the dispute, even if there is one, cannot be referred for arbitration. 3. Originally, M/s. Joseph Joseph, Pushpa Joseph, M.J. Thomas and Mathew Joseph were the partners of the firm. Later on, M/s. M.J. Thomas and Mathew Joseph retired from the partnership and by Annexure A2 dated 31.12.2005, the partnership was reconstituted with Joseph Joseph and Pushpa Joseph as partners of the firm. Clause 24 of the said deed reads thus: “24) That in case of any dispute or difference arising between the partners or legal representatives, the same shall be referred for decision to one or more arbitrators appointed by the disputed party and the other partner and decision of the arbitrator or arbitrators shall be binding and conclusive on all the partners.” It is into that partnership, the petitioner and respondents 2 and 3 were inducted by Annexure A3 deed of reconstitution of the partnership. Clause 15 of the said partnership deed reads as follows: “15) In so far it is not repugnant to the context such of the terms and conditions contained in the Partnership Deed dated A.R.No. 46/2010. -: 2 :- 31.12.2005 and earlier deeds including dated 11.12.2005 are applicable to this Deed and binding on all the partners and they shall be read as if they form part of this Deed.” The petitioner's contention in this arbitration request is that by virtue of clause 15 of Annexure A3, clause 24 of Annexure A2 stands bodily incorporated in Annexure A3 and therefore there is a binding arbitration clause as between the petitioner and the respondents. In support of his contention, the petitioner relies on a decision of the Supreme Court in M.R. Engineers & Contractors (P) Ltd. v. Som Datt Builders Ltd., 2009(7) SCC 696, wherein, according to the petitioner, when the partners intended to incorporate a referred document in its entirety into the contract, all clauses therein would stand incorporated in the later document. 4. On the other hand, counsel for the 1st respondent would contend that as is clear from the very same judgment, unless the reference to the earlier document clearly indicates an intention between the parties to incorporate the arbitration clause also into the contract, the arbitration clause in the earlier agreement cannot be deemed to have been incorporated into the later document. 5. In answer, the petitioner would rely on paragraph 17, wherein, the Supreme Court has given an illustration of a case where arbitration clause contained in a previous agreement would also apply to the new contract. According to the petitioner, in view of the fact that the illustration given in paragraph 17 of the judgment is on all fours with the facts of this case. Clause 24 of Annexure A2 partnership deed would stand bodily incorporated in Annexure A3, consequent to which there is a binding arbitration agreement between the parties. The petitioner also relies on the findings in Annexure A9 A.R.No. 46/2010. -: 3 :- judgment of the District Judge, Thrissur, in A.O.P. 142/2010, filed by the petitioner under Section 9 of the Arbitration and Conciliation Act, wherein there is a finding that the dispute between the parties is referable to arbitrator. The answer of the 1st respondent to that contention is that Annexure A9 is pending in appeal before this Court . 6. I am spared of the task of rendering a decision on this point at this point of time, in view of the fact that the petitioner and the 1st respondent agree that that issue also may be left open to be decided by the arbitrator in view of Section 16 of the Arbitration and Conciliation Act, 1996. In view of this agreement, I am inclined to refer the dispute between the petitioner and the respondents for arbitration without deciding the question as to whether there is a binding arbitration clause between the parties, leaving it to be decided by the arbitrator, in accordance with the provisions of the Arbitration and Conciliation Act, 1996. I appoint Mr. Justice M. Ramachandran, former Judge of this Court, 2/A, Sivam, Layam Road, Ernakulam, Kochi-682911 as the arbitrator for the purpose. The arbitrator so appointed shall enter into the arbitration and consider all questions involved including the question as to the existence of an arbitration clause in the agreement between the parties and render a decision in respect of the disputes between the parties. The Arbitration Request is disposed of as above. S. Siri Jagan, Judge. Tds/