IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WP(C).No. 5998 of 2006(L) ------------------------- (IA NO. 1801/2005 IN OS NO. 12/98 OF THE SUB COURT, TIRUR) PETITIONER: ------------- T.K.HAMZA HAJI, MANAGING PARTNER, M/S.KUTTIPPURAM AREACANUT TRADERS AND HILL PRODUCE DEALERS, KUTTIPPURAM, MALAPPURAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS RESPONDENT: --------------- RASHMI TRADERS, REPRESENTED BY ITS PROPRIETOR, T.K.YUSUF MEMON, JAMAT BUILDING, MASKASATH ITHWARI, NAGPUR. BY ADV. SRI.T.KRISHNAN UNNI (SR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 5998/06 APPENDIX PETITIONER'S EXHIBIT: EXT.P1 : TRUE COPY OF THE ORDER IN IA NO.1801/2005 IN OS NO.12/1998 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR DATED 26.11.2005. /TRUE COPY/ PA TO JUDGE HARUN-UL-RASHID, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P(C) No. 5998 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of January, 2009 JUDGMENT The writ petitioner herein is the plaintiff in OS No.12/98 on the file of the Sub Court, Tirur. The suit was instituted for realization of Rs.26,83,918/- from the defendant who is the respondent herein. 2. In the written statement filed by the respondent it is pointed out that, Clause 17 provides arbitration and therefore the matter has to be referred to the arbitrator to resolve the dispute. The arbitrator in the award, dated 18.01.06, examined the question whether there is an arbitration agreement or the same is concocted as contended by the plaintiff in the suit. In paragraph 9 of the award the arbitrator found that, page 2 of Ext.A2 is without the signatures of parties, reveal a concocted story and not acceptable in law. It is also stated that all the crucial clause relied on by party No.1 are inscribed on page 2 of Ext.A2 and it is strange that the parties have not affixed signatures on second page alone and this conduct of the parties is beyond comprehension. The Arbitrator concluded in paragraphs 11 that there is no arbitration clause in Ext.A2 warranting reference of the main dispute for arbitration. It is submitted by the counsel for the W.P.(C)No. 5998 OF 2006 -:2:- respondent that, award passed by the arbitrator is under challenge. In view of the decision of the arbitrator, in the interest of justice, the suit has to be restored to file. Therefore, Ext.P1 order passed by the Subordinate Court, Tirur is set aside and the said court is directed to restore the suit to file and proceed with the case on merits. Writ Petition is disposed of as above. (HARUN-UL-RASHID, JUDGE) ttb