High Court Kerala High Court

K.R. Vasudevan vs P.C. Lipi on 24 March, 2008

Kerala High Court
K.R. Vasudevan vs P.C. Lipi on 24 March, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 771 of 2003()


1. K.R. VASUDEVAN, KUNNUMPURATH VELILYIL,
                      ...  Petitioner
2. K.R. MOHANAN,  DO.
3. K.R. MURALI,  DO.
4. K.R. SANTHOSH KUMAR,  DO.
5. K. R. THILAKAN,  DO.

                        Vs



1. P.C. LIPI, D/O. CHELLAPPAN,
                       ...       Respondent

2. P.C. SUMADEVI, D/O. CHELLAPPAN DO.

3. P.C. KAVITHA, D/O. CHELLAPPAN,  DO.

4. P.C. JAYAN,  S/O. CHELLAPPAN,  DO.

5. P.C. BINU, S/O. CHELLAPPAN, DO.

                For Petitioner  :DR.V.N.SANKARJEE

                For Respondent  :SRI.JOBY CYRIAC

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :24/03/2008

 O R D E R
                         K.T.SANKARAN, J.
                 ----------------------------------
                 C.R.P.NO.771 OF 2003
             --------------------------------------------
           DATED THIS THE 24TH DAY OF MARCH, 2008


                               O R D E R

The revision petitioners challenge the judgment dated

29.10.2002 on the file of Sub Court, Cherthala dismissing the

appeal filed by the petitioners against the order dated 5.10.1999

in I.A.No.1282/94 in O.S.No.459/89 of Munsiff Court, Cherthala.

2. The suit was filed for an injunction restraining the

defendants therein from obstructing the plaintiffs from

participating in the affairs of a partnership firm. It is stated that

the petitioners, their late father K.T.Ramakrishnan and the

respondents were carrying on a small scale industry under the

name and style ‘ Vembanad Chemicals’ on partnership. The

partnership was constituted on 1.7.1977 and it was reconstituted

on 18.3.1981. K.T.Ramakrishnan, the predecessor in interest of

the petitionerss was the managing partner. K.T.Ramakrishnan

died on 25.4.1989. The suit was filed thereafter.

3. In the suit, I.A.No.2531/89 was filed by the defendants

(revision petitioners) to stay the suit and to refer the parties to

arbitration, since there was an arbitration clause in the

C.R.P.771/03 -2-

partnership deed. The trial Court dismissed that application. On

appeal as C.M.A.No.27/89, Sub Court Cherthala, allowed the appeal and

referred the parties to arbitration. The plaintiffs filed C.R.P.No.2429/91

challenging the judgment in C.M.A.No.27/89. This Court appointed Shri

V.Sivaswamy as the Arbitrator. On 11.4.1994, the arbitrator passed an

award.

4. I.A.No.1282/94 was filed by the defendants under sections

15, 16 and 30 of the Arbitration Act, 1940 to set aside, remit or modify

the award. I.A.No.1282/94 was dismissed by order dated 5.10.1999.

The defendants challenged that order in C.M.A.No.40/99 before Sub

Court, Cherthala. The appeal was filed under Section 39 of the

Arbitration Act. Before the appellate Court, the revision petitioners

herein produced the judgment and decree in O.S.No.158/94, which was

a suit filed by them for dissolution of partnership. O.S.No.158/94 was

decreed ex parte on 8.3.2001. The appellate Court dismissed the

appeal on two grounds. (1) The appeal is not maintainable under Order

43 Rule 1 of the Code of Civil Procedure against the order in

I.A.No.1282/94. (2) In view of the disposal of O.S.No.158/94, the

prayer sought for in the suit has become infructuous. Therefore, it is

not necessary to consider the appeal preferred against the order in

I.A.No.1282/94.

C.R.P.771/03               -3-


     5.   The view taken by the Court below is not correct.         The

appeal was not filed under Order 43 Rule 1 C.P.C. but it was filed under

Section 39 of the Arbitration Act, 1940. The second ground on which

the appeal was dismissed by the Court below appears to be erroneous.

Even if the suit becomes infructuous in view of the decree granted in

O.S.No.158/94, the appeal filed by the defendants in O.S.No.459/89

challenging the award will not become infructuous. Therefore, I am of

the view that the appellate Court has to dispose of the appeal on the

merits.

For the aforesaid reasons, the judgment passed by the Court

below is set aside and the matter is remitted to the appellate court for

fresh disposal. The parties shall appear before the Court below on

26.5.2008.

K.T.SANKARAN, JUDGE.

dsn