Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 29TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 AR NO. 16 OF 2022 APPLICANT: JOHN ALAPATT, AGED 55 YEARS, SON OF P T ANTONY, ALAPATT PALATHINKAL HOUSE, TC 4/1413 (2) KAVU ROAD, KURAVANKONAM, KOWDIAR P.O., THIRUVANANTHAPURAM BY ADVS. V.SURESH G.SUDHEER R.HARIKRISHNAN (H-308) RESPONDENTS: 1 VIJAYAKUMAR, AGED 52 YEARS, SON OF SOMASEKHARAN NAIR, TC 41/2081, KUNJU VEEDU, THYCAUD P.O., THIRUVANANTHAPURAM PIN: 695014 2 JOJU MATHEW, AGED 45 YEARS, SON OF MATHEW, SINDHU HOUSE, TC 34/562 (1) BEACH P.O., THIRUVANANTHAPURAM PIN: 695007 THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O R D E R
The applicant says that he entered into Annexure-1 Agreement with the respondents, thus granting them licence to use the property covered by it, as a “Pay and Park” one. He asserts that the term of the licence was for three years, but that the respondents did not pay him the agreed amount of lease rent; thus forcing him to invoke his right under the agreement to cancel it.
2. The applicant admits that the respondents filed two
suits before the competent Civil Court, but that the learned Munisiff correctly held, through Annexure - 5 order, that on account of a valid arbitration clause in the agreement between the parties, the suits are not maintainable.
3. The applicant alleges that, in spite of this, the
respondents have not initiated any steps to commence the arbitration proceedings, thus constraining him to approach this Court invoking jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act” for short)
4. I have heard Sri.G.Sudheer - learned counsel for the
applicant. Even though notices from this Court have been validly served on the respondents, they have chosen not to be present in person or to be represented through counsel; thus inferentially guiding me to the impression that they have nothing to offer in answer to the allegations made by the applicant in this Arbitration Request.
5. Sri.G.Sudheer - learned counsel for the applicant,
vehemently submitted that Clause 11 of the Agreement provides that when disputes arose between the parties, inclusive of any question as to the interpretation of any Clause therein, it shall only be adjudicated and resolved through arbitration in
accordance with the Act. He submitted that since the respondents have refused to abide by his client’s request either for settlement of his claim, or for appointment of an Arbitrator, he is justified in approaching this Court through this Arbitration Request. He concluded his submissions saying that, in view of the order of the learned Munsiff in O.S.No.448/2021 - namely Annexure - 5, his client is deserving relief in this Arbitration Request.
6. I have examined Annexure-1 Agreement and it is
without doubt that Clause 21 thereof contractually binds the parties to the mechanism of arbitration for the purpose of resolution of any disputes touching upon or relating to its terms. Further, as rightly stated by Sri.G.Sudheer, the competent learned Munsiff, through Annexure-5, has unequivocally found that such disputes can only be resolved through arbitration.
I am, therefore, of the firm view that this Court is enjoined to allow this Arbitration Request which I do so in the following manner:
(a) I nominate Sri.Alexander Joseph, Prince Tower,
Kombara, Market Road, Ernakulam 682 018, Mobile - 9447325117, Email - [email protected], as the sole Arbitrator to adjudicate and resolve the disputes and differences between the parties to this
CASE ARISING FROM
Annexure 1 agreement.
(b) The Registry is directed to communicate a copy of
this order to the learned Arbitrator, within a period of two weeks from today and to obtain a Statement of Disclosure from him under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996.
(c) Once the Disclosure Statement is obtained from the
learned Arbitrator, the Registry shall release the certified copy of this order, with a copy of the said statement appended to it, retaining the original of the same on the files of this case.
(d) The fees of the Arbitrator shall be governed by the Fourth schedule to the Arbitration and Conciliation Act, 1996.
(e) In order to enable the Arbitrator to commence the
proceedings without delay, I direct the parties to mark appearance before him at 11 a.m on 20.04.2022. Since the respondents are remaining ex parte in this proceedings, the learned Arbitrator shall notify them of this date, or a future date, appropriately.
Sd/- raj/RR DEVAN RAMACHANDRAN JUDGE APPENDIX OF AR 16/2022 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE AGREEMENT OF LICENSE EXECUTED BY THE PETITIONER AND OTHERS DATED 20.7.2019 Annexure A2 TRUE COPY OF THE SUIT O.S. NO. 448/2021 FILED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 24.3.2021 Annexure A3 TRUE COPY OF I.A. NO. 4/2021 IN O.S. NO. 448/2021 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM Annexure A4 TRUE COPY OF THE OBJECTION FILED BY THE 2ND PLAINTIFF JOJU MATHEW IN O.S. NO. COURT, THIRUVANANTHAPURAM DATED 28.7.2021 Annexure A5 TRUE COPY OF THE ORDER DATED 31.8.2021 IN I.A. NO. 4/2021 IN O.S. NO. 448/2021 OF THE COURT OF PRINCIPAL MUNSIFF, THIRUVANANTHAPURAM