IN THE HIGH COURT OF KERALA AT ERNAKULAM
AR.No. 38 of 2009()
1. K.L.JOSEPH SON OF LONAN
... Petitioner
Vs
1. K.V.THEO, SON OF VARGHESE
... Respondent
For Petitioner :SRI.P.F.FRANCIS
For Respondent :SRI.P.T.JOSE
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :20/01/2010
O R D E R
ANTONY DOMINIC, J.
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Arbitration Request No.38 of 2009
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Dated, this the 20th 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 to resolve the dispute between the applicant
and the respondent.
2. According to the applicant, he and the respondent are
partners of a firm, the partnership deed of which is Annexure 5. It
is stated that Clause 17 of the partnership deed provides for
resolution of disputes among partners by arbitration. It is stated
that disputes arose and by Annexure 1, the applicant appointed an
Arbitrator, which was not agreed to by the respondent and that
thereafter this arbitration request is filed under Section 11(6) of the
Arbitration and Conciliation Act for appointment of an Arbitrator.
3. Section 11(6) of the Arbitration and Conciliation Act
enables the Honourable Chief Justice or his designate to appoint an
Arbitrator. Such power of appointment can be exercised only in the
A.R.No.38/2009
-2-
event of failure of the agreed procedure for resolving the disputes.
In this case, though, Annexure 5 partnership deed provides for
Arbitration to resolve disputes, appointment of an Arbitrator is
contemplated only in the event the dispute is not resolved after
discussion in the general body of the partners.
4. In this case, not only that there is no pleadings, but even
no document is produced to show that the matter was discussed in
the general body of the partners and that the parties failed to
resolve the controversy in the general body necessitating the
appointment of an arbitrator. Therefore, the pre-conditions for
seeking appointment of an Arbitrator, namely, discussion in the
general boy and failure to resolve the dispute, are not satisfied, in
which event, the power under Section 11(6) of the Arbitration and
Conciliation Act, 1996 cannot be invoked.
In view of this, I do not find any ground to appoint an
Arbitrator as sought for.
This arbitration request is accordingly rejected.
(ANTONY DOMINIC, JUDGE)
jg