IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2858 of 2007()
1. VINU MUNSHI, W/O. SANJAY MUNSHI,
... Petitioner
2. GIREESH, S/O. GURULINGAPPA,
Vs
1. M/S. GANDHIGRAM AGRO BASED INDUSTRIES,
... Respondent
2. MR. SANJAY MUNSHI, S/O. CHAMANLAL,
3. M/S. SHANGRILA LATEX PVT. LTD.,
4. THE ASSISTANT DISTRICT INDUSTRIES
For Petitioner :SRI.V.M.KURIAN
For Respondent :SMT.S.K.DEVI
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :13/01/2009
O R D E R
K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN JJ.
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W. A. No. 2858 OF 2007
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Dated this the 13th day of January, 2009
JUDGMENT
BALAKRISHNAN NAIR, J
The appellants are the writ petitioners. The writ petition was
filed by them, challenging Exts.P3 and P5 orders of the arbitrator and
Kerala Co-operative Tribunal respectively. ARC No.1 of 2004, filed
by the 1st respondent against the 2nd and 3rd respondents, is pending
before the 4th respondent. The petitioners, who are the Directors of
the 3rd respondent company, have also been impleaded in the above
ARC by the 4th respondent, by Ext.P3 order, though they stiffly
resisted the application for impleadment. The petitioners carried the
matter in revision before the Co-operative Tribunal. The Tribunal
affirmed the order of the arbitrator as per Ext.P5. Therefore, the writ
petition was filed challenging Exts.P3 and P5.
2. Appellants would submit that the Tribunal has proceeded on
the assumption that the 3rd respondent is a partnership firm and the
appellants being partners of the said firm are jointly and severally
liable. The said assumption is factually incorrect and legally
unsustainable, it is submitted. Other contentions are also raised.
WA No.2858/2007
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But, we notice that the learned Single Judge has issued necessary
directions to safeguard the interest of the appellants and also their
contentions. The relevant portion of the judgment under appeal
reads as follows:
“4. By the impleadment, while the petitioners have been
brought on record as additional defendants in the arbitration
case, such impleadment shall not, in any manner, impair any
of their defence, including the right to content that there can
be no personal liability on them, who were directors of the
third respondent company at some point of time. The
question whether they are personally liable has to be
decided with reference to the relevant laws and the facts.
The maintainability of proceedings against the petitioners is
also an issue which would be available for consideration at
the final disposal of the arbitration case. The effect of the
order of impleadment is only that the petitioners have been
brought on record as additional defendants and the impugned
orders do not, in any manner, preclude any of the contentions
of the petitioners on the merits of the case, including the
question of jurisdiction, maintainability and liability of parties.
5. For the aforesaid reasons, while affirming the
impleadment of the petitioners in the arbitration case, it is
directed that the proceedings in the arbitration case shall be
untrammelled by anything stated in the impugned orders.
The petitioners shall be given opportunity to place on record
WA No.2858/2007
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all contentions as are available to them in opposition to the
arbitration case and the matter shall be decided on merits
without reference to the reasons stated in the impugned
orders.”
3. Going by the above portion of the judgment, we are of the
firm view that, all the contentions of the appellants are kept open,
notwithstanding the impugned orders, Exts.P3 and P5. Therefore,
even if now they are parties to the arbitration proceedings, they can
resist fastening any liability on them, raising all possible contentions.
In view of the order of the learned Single Judge, the arbitrator is
bound to consider them on merits uninfluenced by anything
contained in Exts.P3 and P5. Therefore, we do not find any reason
to interfere with the judgment under appeal. Accordingly the writ
appeal is dismissed.
K. BALAKRISHNAN NAIR, JUDGE
K.SURENDRA MOHAN, JUDGE
ttb