IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 AR.No. 23 of 2009() ------------------- APPLICANT(S): ------------------------------ BOBY IYPE,AGED 44 YEARS,S/O.LATE IYPE, AVATHOOTT HOUSE, ELAMBRA,KOTHAMANGALAM. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): --------------- SMT.HOWAMMA JOHN,W/O.LATE JOHN, AMMAMKULAM HOUSE,THANKALAM,KOTHAMANGALAM-686 691. ADV. SRI.JOY GEORGE SMT.PRAICY JOSEPH THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- A.R. No.23 of 2009 --------------------------------- Dated, this the 19th day of January, 2010 O R D E R This Arbitration Request is filed for an order appointing an Arbitrator as provided under Section 11(6) of the Arbitration and Conciliation Act, 1996. 2. The case of the applicant is that a partnership firm by name M/s.J.B. & Co. was in existence from 16/01/1992 with himself and Shri.A.V.Iype, his father, as partners. It is stated that subsequently, on 06/04/1995, the respondent and her husband Late Shri. John Mathew were inducted into the partnership firm and Annexure A1 partnership deed was executed reconstituting the firm. It is stated that the partnership firm established a weighing centre by name “J.B.Weighing Centre”, at Thankalam, Kothamangalam. 3. According to the applicant, Clause 12 of Annexure A1 partnership deed provides that any dispute or difference between the partners shall be settled by arbitration. It is stated that A.R.No.23/2009 -2- subsequently Shri.A.Y.Iype and Shri.John Mathew expired, and now the applicant and the respondent are the partners who are continuing the aforesaid business. It is stated that disputes arose between them in regard to the business and as the disputes were not resolved among the parties, the applicant issued Annexure A5 notice nominating an arbitrator and requiring the respondent to consent to the said appointment. Annexure A6 reply was issued by the respondent disputing not only the claim of the applicant, but also the validity of the appointment made. It is in these circumstances, he has filed this Arbitration Request. He has also produced Annexures A7 to A21 documents to substantiate his plea that J.B.Weighing Centre has been established by the partnership firm. 4. On the other hand, the respondent contends that she and her husband were working abroad and while they were abroad, they had established the Weighing Centre utilising their own funds. It is stated that for this purpose they had availed of assistance of the applicant, who is none other than their nephew. It is contended that J.B.Weighing Centre is the proprietary concern of the A.R.No.23/2009 -3- respondent. It is also her case that after they came back from abroad, they were inducted into the partnership firm and Annexure A1 partnership deed was executed on 06/04/1995. It is stated that the weighing center was established in 1993 and the very fact that the name of the weighing centre does not figure in the partnership deed shows that the business was not established or carried on by the partnership firm. It is therefore contended that since J.B.Weigh Centre was a proprietary concern of the respondent, the partnership deed or the arbitration clause incorporated therein are inapplicable in so far as the weighing centre is concerned. 5. From the controversy raised by both sides, it is obvious that there is a partnership firm, to which the applicant and the respondent are partners, and that the partnership deed provides for settlement of disputes by arbitration. The contention of the respondent to resist the appointment of the arbitrator is that the business in question is a proprietary business and therefore, the provision of arbitration contained in Annexure A1 partnership deed is inapplicable in so far as the business is concerned. Thus, the existence of arbitration agreement is in dispute. But however, what A.R.No.23/2009 -4- is to be examined is whether the arbitration clause incorporated in the partnership deed is applicable in respect of the business in question. This, prima facie, is a matter, which has to be adjudicated by an arbitrator based on the evidences that are to be adduced by both parties. Since arbitration agreement is in existence, as the dispute between the parties is an arbitrable dispute, an arbitrator has to be appointed. 6. In view of the above, without pronouncing anything on the other issues raised between the parties, which are to be raised before an Arbitrator, I appoint Adv.Shri.P.S.Divakaran as Arbitrator as suggested by both sides, to arbitrate on the disputes between the parties. The Arbitrator will issue notice to the parties and pass an award in terms of the provisions contained in the Arbitration and Conciliation Act, 1996. The applicant shall produce a copy of this order before the Arbitrator for necessary further action in the matter. This arbitration request is disposed of as above. (ANTONY DOMINIC, JUDGE) jg