IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 AR.No. 9 of 2008() ----------------------- PETITIONERS: --------------------- 1. AJITH KUMAR, AGED 38 YRS, S/O. CHANDRAN, CHACKALAKAL HOUSE, ALUVA, EDAYAPPURAM KARA, ALUVA EAST VILLAGE, ALUVA TALUK, PARTNER IN GLOBAL VISION CABLE TV NET WORK, ALUVA. 2. SOJA AJITHKUMAR,W/O.AJITHKUMAR, AGED 36 YEARS CHACKALAKAL HOUSE, ALUVA, EDAYAPPURAM KARA, ALUVA EAST VILLAGE, ALUVA TALUK, PARTNER IN GLOBAL VISION CABLE TV NET WORK, ALUVA. 3. K.G.SATHEESAN, AGED 35 YEARS, S/O. GOPINATHAN, KUDILINKAL HOUSE, HOUSE NO.XVII/224, CHACKALAKAL HOUSE, ALUVA, EDAYAPPURAM KARA, ALUVA EAST VILLAGE, ALUVA TALUK, PARTNER IN GLOBAL VISION CABLE TV NET WORK, ALUVA. 4. SAROJINI, AGED 55 YRS, W/O. GOPINATHAN, CHACKALAKAL HOUSE, ALUVA, EDAYAPPURAM KARA, ALUVA EAST VILLAGE, ALUVA TALUK, PARTNER IN GLOBAL VISION CABLE TV NET WORK, ALUVA. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENT(S): ------------------------ 1. SANTHOSH, AGED 47 YEARS, S/O. DAMODARAN, KAIPPALATHIL HOUSE, EDAYAPPURAM KARA, ALUVA EAST VILLAGE, ALUVA TALUK - PARTNER IN GLOBAL VISION CABLE TV NETWORK, ALUVA. 2. ANILA SANTHOSH, AGED 40, W/O. SANTHOSH, KAIPPALATHIL HOUSE, EDAYAPPURAM KARA, ALUVA EAST VILLAGE, ALUVA TALUK - PARTNER IN GLOBAL VISION CABLE TV NETWORK, ALUVA. 3. RAMESH BABU, AGED 43 YEARS, S/O. SUKUMARAN, CHATTUPADAM HOUSE, S.N.PURAM, ALUVA, THAIKKATTUKARA, ALUVA TALUK, PARTNER IN GLOBAL VISION TV NETWORK, ALUVA - PARTNER IN GLOBAL VISION CABLE TV NETWORK, ALUVA. 4. USHA RAMESH, AGED 38 YEARS, W/O. RAMESH BABU, -DO- -DO- BY ADV. SRI.RAJIV NAMBISAN FOR R.1,2 SRI.SAJAN PUTHENVEETTIL FOR R.1,2 SRI.E.D.GEORGE FOR R3,4 THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE, J - - - - - - - - - - - - - - - - - - - - - - - A.R.No. 9 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2008. O R D E R This arbitration request under Section 11(5) of the Arbitration & Conciliation Act, 1996 seeks the appointment of an arbitrator for deciding and passing an award on the dispute, claims raised between the parties. According to the petitioners, they and respondents are partners in a partnership business constituted by Annexure A1 partnership deed. A1 contains clause 26 arbitration clause. Petitioners submit that disputes subsist between the parties over dissolution of this partnership and also over the claims which the petitioners are having against the respondents in relation to the business carried on by the partnership. 2. Inter alia it is contended by the respondents that Annexure A1 partnership does not exist at all. The contention is that the documents containing apparent signatures of the respondents are brought into existence by fabricating signed papers, which reached the hands of the petitioners in blank in connection with another partnership business. A.R.No. 9 of 2008 - 2 - 3. I have heard the submissions of Sri. Mohan Jacob George for the petitioners and Sri. Sajan Puthen Veetil for the respondents. The Constitution Bench of the Supreme Court in M/s. S.B.P. & Co. v. M/s. Patel Engineering Ltd. [J.T.2005 (9)SC 219] has settled the law regarding the nature and scope of the proceedings before the Chief Justice or the designated Judge under Section 11(4), 11(5), 11(6) of the arbitration Act. A Bench of the Supreme Court analysed the judgment of the Constitution Bench in S.B.P. & Co. Ltd's case (Supra) in National Insurance Co. Ltd. v. M/s. Boghara Polyfab Pvt. Ltd. [ 2008 (4) KLT (Case No.48) SC] and would hold that the preliminary issues which may rise for consideration of an application under Section 11 before the Chief Justice or the designated Judge fall into three categories. The first category being issues which the Chief Justice or the designated Judge is bound to decide. The second category are issues which the Chief Justice or the designated Judge may choose to decide and the third category are issues which Chief Justice or the designated Judge cannot decide or are to be decided only by the Arbitral Tribunal. A.R.No. 9 of 2008 - 3 - 4. I find that the issue whether there is arbitration agreement and whether the party who has applied under Section 11 is a party to such agreement falls in the first category. The original of Annexure 1 is not produced. It is submitted that a police investigation is already on regarding the genuineness of Annexure 1 and related documents at the instance of the respondents. Under the above circumstances, I find it difficult to settle the first issue. Therefore, I am of view that the petitioners should work out their remedies through a Regular Civil Court. 5. Mr. Mohan Jacob George, counsel for the petitioner submitted that once petitioners move to the Regular Civil Court and that court enters findings regarding the genuineness of Annexure 1 partnership and Clause 26 therein in favour of the petitioners, the respondents are likely to resile from the stand taken before this Court and take recourse to Clause 26 for arguing that the proceedings before the Civil Court are not maintainable in view of the Clause 26. When Mr. Sajan Puthen Veetil was asked whether the contention taken before this Court that Annexure A1 is not a genuine partnership deed and there is no relationship between petitioners and the opposite parties is A.R.No. 9 of 2008 - 4 - taken seriously the learned counsel submitted that such a contention is taken without utmost bonafides and that the respondents will always stick to such contention. 6. Under the above circumstances, even as I decline jurisdiction in this arbitration request, I relegate the petitioners to a Regular Civil Court. I make it clear that the respondents will be estopped from contending before that Court at any stage of the proceedings that the proceedings are not maintainable in view of the arbitration clause No. 26 in Annexure 1. With the above observation, I dismiss the Arbitration Request, relegating the petitioner to the Civil Court. PIUS C. KURIAKOSE, Judge rhs