IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 AR.No. 11 of 2010() --------------------------- PETITIONER: -------------------- K.L.JOSEPH, S/O.LONAN, KOITHARA HOUSE, SHINE ROAD, VYTTILA, COCHIN-19. BY ADV. SRI.P.F.FRANCIS RESPONDENT: ----------------------- K.V.THEO, S/O.VARGHESE, KATTITHARA HOUSE, COSMOS ROAD, VYTTILA, COCHIN-19,. ADV. SRI.P.T.JOSE FOR R1 THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- Arbitration Request No. 11 of 2010 ------------------------------------------ Dated this the 24th day of June, 2010 O R D E R The petitioner states that he is the Managing Partner of a registered partnership firm, namely, J & T Investments. The firm was engaged in conducting chits. The petitioner and the respondent are the partners. There arose a dispute between the partners. Clause 17 of Annexure A2, partnership deed, provides for arbitration clause. It reads as follows: “All matters of difference of opinion or dispute which may arise between the partners with regard to the constitution, meeting and any other matters will be decided and settled mutually in the General body meeting of the partners, failing which the matter shall be referred to an Arbitrator in consultation with the legal adviser.” 2. The petitioner filed Arbitration Request No. 38 of 2009 for referring the dispute to arbitration. A.R. No.38 of 2009 was dismissed by the order dated 20/01/2010 on the ground that the agreed procedure for resolving the dispute was not complied with. Paragraph (4) of the said order reads as follows: Ar. Req. No. 11/2010 2 “In this case, not only that there is no pleadings, but even no document is produced to show that the matter was discussed in the general body of the partners and that the parties failed to resolve the controversy in the general body necessitating the appointment of an arbitrator. Therefore, the pre-conditions for seeking appointment of an Arbitrator, namely, discussion in the general body and failure to resolve the dispute, are not satisfied, in which event, the power under Section 11(6) of the Arbitration and Conciliation Act, 1996 cannot be invoked. In view of this, I do not find any ground to appoint an Arbitrator as sought for.” 3. According to the petitioner, after the disposal of Arbitration Request No.38 of 2009, he issued Annexures A5 and A6 notices to the respondent, directing him to attend the meeting of the partners to be held at the residence of the petitioner on 15/2/2010. The respondent sent Annexure A13 reply stating that though he went to the house of the petitioner on 15/2/2010, nobody was seen in the house. When the Arbitration Request came up for hearing on 3/6/2010, as agreed by the parties, an Ar. Req. No. 11/2010 3 order was passed directing to convene a meeting of the partners. Paragraph (4) of the order dated 3/6/2010 reads as follows: “When the Arbitration Request was taken up for hearing, both sides agreed that a meeting of the partners can be held at Hotel Woodlands, M.G.Road, Ernakulam at 2 P.M on 21/6/2010. It is also agreed that in case the partners are not able to resolve the dispute, consultation with the legal adviser as mentioned in paragraph 17 of the partnership deed also would be held at the same venue on the same date. It is submitted by the learned counsel for the respondent that the legal adviser is the counsel appearing for the petitioner. Still, in order to comply with all the terms in paragraph 17 of the partnership deed, before referring the mater to arbitration, it would be proper to comply with that condition also. Both sides agreed to comply with the said condition as well. The learned counsel for the petitioner also agreed that he would be present at the aforesaid venue on 21st June, 2010 at 2 P.M to enable the partners to have the consultation with him.“ 4. The learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent submitted that the order dated 3/6/2010 was complied with and Ar. Req. No. 11/2010 4 the partners met. The disputes were not resolved. Consultation with the legal adviser, as mentioned in paragraph 17 of the partnership deed, was also made. Still, the dispute was not resolved. The learned counsel appearing for the parties submitted that any person from the panel of arbitrators may be appointed as the arbitrator. In view of the admitted facts and circumstances, the request for appointing an arbitrator is only to be granted. Accordingly, the Arbitration Request is allowed. Sri. P.R.Shaji, Advocate, High Court of Kerala, Pattali House, Edathiruty, Thrissur–680703, is appointed as arbitrator for resolving the disputes between the parties in respect of M/s. J & T Investments, Building No. XXX/IIII, Cochin Corporation, Vyttila P.O.,Ernakulam, Cochin-19. The arbitrator would be free to decide the venue of sitting and the remuneration to be paid. K.T. SANKARAN, JUDGE scm