IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 AR.No. 28 of 2009() ------------------- PETITIONER: -------------------- KARTHIKEYAN.V., AGED 52, S/O.MR.VASUDEVAN, RESIDING AT KARTHIKA KOTTARKAVU P.O., MAVELIKKARA, REPRESENTED BY POWER OF ATTORNEY HOLDER MOHANAN PILLAI, AGED 43, S/O.JANARDHANAN PILLAI PULARI, PRAYIKKARA MURI, MAVELIKKARA VILLAGE. BY ADV. SRI.PHILIP M.VARUGHESE SRI.V.AJITH KUMAR RESPONDENT(S): --------------- 1. M.B.SREEKUMAR, AGED 37 S/O.MR.BHASKARAN, RESIDING AT MOHANAVILASAM, THENGUMKAVU P.O., PATHANAMTHITTA. 2. K.PADMAKUMAR, AGED 39, S/O.MR.KUTTAPPAN, RESIDING AT LAKSHMI VILAS, PRAMADOM P.O., MALLASSERY. 3. S.Y.SANDEEP, AGED 30, S/O.MR.YESODHARMAN, RESIDING AT HARITHA, EDAPARIYARAM, ELANTHOOR P.O., ADV. SRI.A.SUDHI VASUDEVAN FOR R1 SMT.K.PUSHPAVATHI FOR R1 THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- A.R.No.28 of 2009 --------------------------------------------- Dated this the 5th day of August, 2010 ORDER The petitioner and respondents are partners of a registered partnership firm, namely, Aswini Associates having its head office at Konni. It is stated that the partnership deed dated 16.9.2004 is a partnership at will. 2. The petitioner states that the first respondent is the Managing Partner. The petitioner as well the other respondents are the other partners. It is stated that the firm constructed and started a multi specialty hospital in the name and style “Swami Swasthikanantha Mission Hospital” at Konni. The petitioner states that the assets acquired by the firm were sold to one Mr.Jacob Mathew on 8.2.2008 for a total consideration of Rs.7 Crores and the entire consideration was received by the Managing Partner. It is also stated that the profits received before 8.2.2008 were retained by the first respondent. Disputes arose between the partners. 3. Clause 19 of Annexure A partnership deed provides thus: AR No.28/2009 2 “Any dispute arising out of this deed of partnership shall be settled by arbitration in accordance with the provision of the Indian Arbitration Act.” 4. The petitioner issued Annexure B notice to the respondents requesting to refer the dispute to arbitration. The name of an arbitrator was also suggested in Annexure B. The petitioner states that no reply was sent to Annexure B notice. 5. Respondents 1 and 3 filed separate counter affidavits. The allegations made against the respondents were denied by them. However, there is not much dispute that the dispute requires resolution by arbitration. According to the first respondent, no amount is due from him either to the petitioner or to the other respondents. The first respondent contends that huge amount is due from the petitioner and the second respondent to the first respondent. It is also alleged that the second respondent is in possession of the books of accounts and that he holds back the books of accounts and other documents. As regards the notice sent by the petitioner, it is stated that the AR No.28/2009 3 notice was not personally served on the first respondent. However, on coming to know of the notice, a lawyer was engaged to sent a reply. Unfortunately, the lawyer failed to sent a reply. The respondents have also serious objections to the appointment of the person nominated by the petitioner as the arbitrator as they have reservations about the impartiality of the person nominated by the petitioner as arbitrator. 6. On going through the Arbitration Request and also the counter affidavits, it is clear that there is a dispute among the parties. The partnership deed provides for settlement of disputes by referring to arbitration. The name of the arbitrator suggested by the petitioner is not acceptable to the respondents. In the facts and circumstances of the case, it is clear that there is an arbitrable dispute and as there is no agreed procedure or consensus among the parties, it is necessary to invoke Section 11(6) of the Arbitration and Conciliation Act. The counsel on either side agreed that Sri.D.Sreevallabhan, Advocate, (who retired as the Registrar, High Court of Kerala) can be appointed as the arbitrator. Accordingly, the Arbitration Request is allowed. AR No.28/2009 4 Sri.D.Sreevallabhan is appointed as the arbitrator to resolve the disputes among the partners of Aswini Associates arising out of the partnership business and all matters connected therewith. K.T.SANKARAN, JUDGE csl