Kerala High Court
Bharat Sursingh Asher vs Smt. Rupa Praveen Asher on 8 July, 2026
2026:KER:50011
A.R.No.292 of 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 8TH DAY OF JULY 2026 / 17TH ASHADHA, 1948
AR NO. 292 OF 2025
PETITIONERS:
1 BHARAT SURSINGH ASHER
AGED 72 YEARS
S/O LATE SURSINGH JAIRAM ASHER,
RESIDING AT FLAT NO. 13G, CHAKOLAS WATERSCAPES,
THEVARA, KOCHI - 682 013.
2 RAJESH GIRDHARDAS ASHER,
AGED 70 YEARS
S/O LATE GIRDHARDAS JAIRAM ASHER, RESIDING AT
FLAT NO.22, CENTURY TERRACE, KADAVANTHARA,
KOCHI, PIN - 682020.
3 HEMANGI B. ASHER,
AGED 65 YEARS
W/O BHARAT S ASHER, RESIDING AT APARTMENT NO.13G,
CHACKOLAS, WATERSCAPES, THEVARA, KOCHI, PIN -
682013.
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SMT.ANNA LINDA EDEN
2026:KER:50011
A.R.No.292 of 2025
2
SHRI.HARIKRISHNAN S.
SMT.ANAVADYA SANIL KUMAR
SMT.ANJALI KRISHNA
SHRI.ABHINAV P. S.
RESPONDENTS:
SMT. RUPA PRAVEEN ASHER,
AGED 74 YEARS
RESIDING AT CENTURY TERRACE, FLAT NO. 41,
YUVAJANA SAMAJAM ROAD,KADAVANTHRA, PIN - 682020
BY ADVS.
SHRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHY (P-41)
SMT.REENA THOMAS
SMT.NIGI GEORGE
SHRI.ANANTHU V.LAL
SHRI.BRAHMA R.K.
SHRI.ANTONY THOMAS MOHAN
SMT.FABI ABDUL LATHEEF
OTHER PRESENT:
ADV S SREEKUMAR, SR
THIS ARBITRATION REQUEST HAVING COME UP FOR
ADMISSION ON 19.06.2026, THE COURT ON 08.07.2026 PASSED
THE FOLLOWING:
2026:KER:50011
A.R.No.292 of 2025
3
[CR]
S.MANU, J.
--------------------------------------------------
A.R.No.292 of 2025
-------------------------------------------------
Dated this the 08th day of July, 2026
ORDER
Petitioners have approached this Court seeking nomination
of an Arbitrator to resolve the disputes amid them and the
respondent in accordance with Clause 22 of Annexure-I
reconstituted partnership deed dated 29.01.2009.
2. Summary of the facts stated in the memorandum of
arbitration request is as under:-
The petitioners and the respondent were partners of
M/s.Jairam and Sons, a registered partnership firm having its
principal place of business at Willingdon Island, Kochi. Petitioners
1 and 2 were the managing partners of the firm. The firm was in
existence since 1982 as a registered entity. The partners were
family members. Annexure-I reconstituted partnership deed was
2026:KER:50011
A.R.No.292 of 2025
4executed on 29.01.2009. The respondent as also her husband,
late Sri.Praveen Babubhai Asher, were partners of the firm as
evident from Annexure-I. Later, husband of the respondent
expired on 23.07.2014. Another partner expired on 23.07.2017.
Petitioners allege that subsequent to the demise of her husband,
the respondent adopted a non-co-operative and obstructive
approach towards the management and functioning of the
partnership firm. Relying on clause 17 of Annexure-I partnership
deed, petitioners contend that on the death of a partner, the
partnership deed has to be reconstituted with existing partners.
Only if the partners decide to include legal heir/legal heirs of the
deceased partner, the reconstitution will be with such newly
inducted and surviving partners. They further state that due to
non-co-operation from the respondent, despite the demise of two
partners, reconstitution of the partnership could not be resorted
to. The partnership firm was prevented from submitting annual
returns due to the willful non-co-operation of the respondent.
2026:KER:50011
A.R.No.292 of 2025
5
3. Therefore on 09.03.2017, the petitioners 1 and 2, for
compliance pertaining to the Customs Department, reconstituted
partnership deed. On 24.07.2017, petitioners along with wife of
the 2nd petitioner reconstituted the partnership deed for
compliance requirements pertaining to the Shipping Corporation
of India, Cochin Port Trust and in connection with the
requirements in banks. They were ready and willing to execute a
properly reconstituted partnership deed with the respondent.
However, the respondent declined to co-operate. It is also
alleged that the respondent issued multiple e-mails and legal
notices raising baseless allegations of mismanagement to the
petitioners. The respondent approached police authorities against
the petitioners, leading to registration of Crime No.625 of 2024
of Harbour Police Station. Petitioners state that due to the
registration of the crime at the instance of the respondent and
issues caused by the non-co-operation and hostile attitude of the
respondent, the firm sustained huge business-related losses. In
2026:KER:50011
A.R.No.292 of 2025
6
order to resolve the disputes between the petitioners and the
respondent, the petitioners issued Annexure-III notice dated
14.08.2025, invoking the arbitration clause in Annexure-I
partnership deed, proposing the appointment of an Arbitrator.
Names of two retired Judges of this Court were proposed in the
notice. However, despite receipt of the notice, the respondent did
not co-operate for arbitration. She did not send any reply to
Annexure-III notice. Hence, the arbitration request was filed.
4. The respondent entered appearance and filed counter
affidavit objecting the nomination of Arbitrator and contradicting
all allegations raised against her by the petitioners. It is stated in
the counter affidavit that the arbitration request is not
accompanied by the original arbitration agreement or a duly
certified copy thereof. Hence, the respondent contends that the
arbitration request is liable to be rejected in view of the
provisions of the ‘Scheme for Appointment of Arbitrators by the
Chief Justice of High Court of Kerala, 1996’ [hereafter referred as
2026:KER:50011
A.R.No.292 of 2025
7
the ‘scheme’] and also in view of the provisions of the Arbitration
and Conciliation Act 1996. Further, the respondent alleges that
the petitioners have been carrying on the business and
arrogating the profits to themselves since the year 2017. The
respondent alleges that the petitioners have been sharing profits
to another person and this is evident from the documents
produced along with the counter affidavit. It is also pointed out
that the partnership deeds, which are claimed by the petitioners
to be the reconstituted partnership deeds, do not include the
respondent as a party. Therefore, the petitioners are blowing hot
and cold by relying on Annexure-I to initiate the arbitration
proceedings. It is further stated that the only intention of the
petitioners is to defend the criminal proceedings initiated against
them under the guise of pendency of arbitration proceedings.
The respondent denies that there was any obstructive approach
or non-co-operative attitude from her part. The petitioners have
not paid any share of profits of the firm to the respondents since
2026:KER:50011
A.R.No.292 of 2025
8
the year 2014. False documents were prepared by the petitioners
to exclude the respondent and to deny her due share in the
profits of the firm. She, therefore, contended that the arbitration
request is filed without any bonafides and the only intention is to
escape from the criminal proceedings.
5. Heard Sri.S.Sreekumar, learned Senior Counsel
appearing for the petitioners and Sri.Mohan Jacob George, the
learned counsel for the respondent.
6. I shall begin the discussion by outlining the objections
raised by the respondent. The learned counsel for the respondent
submitted that under the scheme for appointment of Arbitrators
framed by the High Court, production of original of the
arbitration agreement or a duly certified copy thereof is
compulsory. He submitted that the arbitration request is liable to
be rejected if it is not accompanied by the original of the
agreement or the duly certified copy thereof. He pointed out that
the agreement produced along with this arbitration request is not
2026:KER:50011
A.R.No.292 of 2025
9
original. He contended that the copy produced cannot be
recognized as a duly certified copy as mentioned in the scheme.
He therefore contended that without entering into the merits of
the matter, the arbitration request be dismissed. The learned
counsel further submitted that the petitioners have prayed for
appointment of a sole Arbitrator. He submitted that the clause in
Annexure-I relied on by the petitioners contemplates arbitration
by two Arbitrators, one to be appointed by each party to the
dispute and, in the event of their disagreement, by an Umpire
appointed by the Arbitrators or, in the event of their default, by
the parties themselves. He therefore argued that the clause
speaks about appointment of two Arbitrators, one by each party,
and hence the prayer for appointment of a sole Arbitrator is
inconsistent with the arbitration clause in Annexure-I. The
learned counsel further submitted that the arbitration clause in
Annexure-I is inconsistent with Section 10 of the Arbitration and
Conciliation Act. He therefore contended that the arbitration
2026:KER:50011
A.R.No.292 of 2025
10
clause is invalid and the same cannot be relied on for the
purpose of appointment of Arbitrator as sought in this arbitration
request.
7. Further the learned counsel submitted that absolutely
there is no bonafides in the arbitration request as the attempt of
the petitioners is obviously to defend the criminal proceedings
initiated against them, claiming that arbitration proceedings are
pending pertaining to the disputes between the petitioners and
the respondent. The learned counsel further submitted that the
respondent was treated unjustly by the petitioners and she was
excluded from the partnership firm by resorting to
manipulations. She was denied her due share in the profits. The
petitioners inducted another partner and shared the profits with
the said partner. He submitted that the petitioners have
undoubtedly committed various serious offences and if arbitral
proceedings are commenced, the same would defeat the criminal
prosecution proceedings pending against the petitioners.
2026:KER:50011
A.R.No.292 of 2025
11
8. The learned counsel relied on the judgment of the
Hon’ble Supreme Court in Narayan Prasad Lohia v. Nikunj
Kumar Lohia and Others [(2002) 3 SCC 572] in support of his
contention regarding inconsistency of the arbitration clause in
the agreement with the provisions of Section 10 of the
Arbitration and Conciliation Act. He cited the judgment in
Citibank, N.A. v. TLC Marketing PLC and Another[(2008) 1
SCC 481] also in this connection. The learned counsel also
referred to the judgment in Enercon (India) Limited and
Others v. Enercon Gmbh and Another[(2014) 5 SCC 1] to
buttress his contentions in this regard.
9. The learned Senior Counsel for the petitioner
submitted that the objections raised by the respondent are
without any substance. The learned Senior Counsel submitted
that though the scheme framed by the High Court under Section
11(10) of the Arbitration and Conciliation Act insists that the
request shall be in writing and accompanied by the original
2026:KER:50011
A.R.No.292 of 2025
12
arbitration agreement or a duly certified copy thereof, the same
does not mean that certification of the copy shall be by a public
authority. He submitted that arbitration agreements are private
documents in most of the cases and there is no specified
authority who can certify such an agreement. He submitted that
the original of Annexure-I is not with the petitioner. However, a
true copy has been produced and, in the affidavit, filed along
with the arbitration request, it has been averred that the
Annexures produced are the true copies of the original
documents. Further, he submitted that the petitioners have
stated in the additional affidavit that the original of Annexure-I
was in the custody of late Sri.Pravin Babubhai Asher, husband of
the respondent. After his demise, the original is in the custody of
the respondent. They further stated in the affidavit that
Annexure-I produced along with the memorandum of arbitration
request is the true copy of the partnership deed. The learned
Senior Counsel contended that, in the case of a private
2026:KER:50011
A.R.No.292 of 2025
13
document, no certified copy can be issued by any authority. He
made reference to Sections 74 and 75 of the Evidence Act,
corresponding to Section 74 of BSA and submitted that a
partnership deed in the nature of Annexure-I is a private
document and hence no certification by any public authority is
possible in the case of such a document. He argued that in the
case of such documents, certification by the party that the same
is a true copy of the original would be sufficient, as otherwise the
party will be deprived of the right to approach the Court for
reference under Section 11 of the Arbitration and Conciliation
Act.
10. Responding to the contention that the agreement
contemplates arbitration by an even number of Arbitrators and
the prayer in this arbitration request is for appointment of a sole
Arbitrator, the learned Senior Counsel submitted that the relief
was moulded in such a fashion, taking note of the provisions of
Sections 10 and 11 of the Arbitration and Conciliation Act and
2026:KER:50011
A.R.No.292 of 2025
14
also keeping in mind that no procedure for appointment of
Arbitrators have been agreed by the petitioners and the
respondent. He also submitted that if this Court finds that the
Arbitrators can be nominated only in accordance with the
relevant clause in Annexure-I, this Court may nominate two
Arbitrators. Therefore, he submitted that merely for the reason
that the prayer in the arbitration request is for nominating a sole
Arbitrator, the arbitration request cannot be held to be
inappropriate. The learned Senior Counsel also submitted that
the inquiry by the Court under Section 11 of the Arbitration and
Conciliation Act should be confined as to whether there is an
arbitration agreement or not. If the Court is satisfied with the
prima facie existence of an arbitration agreement, binding the
parties, then the dispute is liable to be referred for arbitration. All
remaining matters can be decided by the Arbitrator. The learned
Senior Counsel also contended that the respondent has initiated
criminal prosecution proceedings against the petitioners without
2026:KER:50011
A.R.No.292 of 2025
15
any justification. He submitted that the rival contentions of the
parties pertaining to the merits of the matter need not be
analysed by this Court, once the Court is satisfied that there is
an arbitration agreement and there are disputes between the
parties. He relied on the judgment in M.M.T.C. Ltd. v. Sterlite
Industries (India) Ltd.[(1996) 6 SCC 716] to contend that an
arbitration agreement, specifying an even number of Arbitrators
cannot be a ground to render the arbitration agreement invalid.
11. I have carefully appreciated the contentions of both
sides. I am of the view that serious disputes have arisen between
the parties and many of the contentions raised during the course
of arguments and also in the pleadings are beyond the perimeter
of the restricted inquiry under Section 11 of the Arbitration and
Conciliation Act. The task of the Court exercising the power
under Section 11 of the Act is guided by Section 11(6A). The
Hon’ble Supreme Court, in a catena of decisions has clearly laid
down that the referral court has to adhere to the provisions of
2026:KER:50011
A.R.No.292 of 2025
16
Section 11(6A) while dealing with an arbitration request. If the
contentions of the parties in this arbitration request are viewed
from the said perspective, it should be noted that there is no
quarrel with regard to the fact that there was a partnership deed
and it contained an arbitration clause. Though the respondent
raises a contention that the original of the partnership deed or a
duly certified copy has not been produced along with the
memorandum of arbitration request, the respondent has no case
that the copy produced is not of the original partnership deed.
The respondent also has no case that the arbitration clause in
Annexure-I is not genuine. That being so, the next aspect to be
considered is as to whether the arbitration request is liable to be
rejected for the reason that the original agreement or a ‘duly
certified copy thereof’, has not been produced along with the
memorandum of arbitration request.
12. The learned counsel for the respondent is perfectly
right in pointing out that the Scheme for Appointment of
2026:KER:50011
A.R.No.292 of 2025
17
Arbitrators by the Chief Justice of High Court of Kerala, 1996,
insists that an arbitration request shall be in writing and be
accompanied by the original arbitration agreement or a “duly
certified copy” thereof and also an affidavit supported by the
relevant documents to the effect that the condition to be satisfied
under sub-section (4) or sub-section (5) or sub-section (6) of
Section 11, as the case may be, before making the request to
the Chief Justice, has been satisfied. For clarity, I extract the
relevant paragraph of the scheme hereunder: –
“2. Submission of the request. (1) The request to the
Chief Justice under sub-section (4) or sub-section (5) or sub-
section (6) of Section 11 shall be made in writing, and shall
be accompanied by-
(a) the original arbitration agreement or a duly certified copy
thereof, and
(b) an affidavit, supported by the relevant documents, to the
effect that the condition to be satisfied under sub-section (4)
or sub-section (5) or sub-section (6) of Section 11, as the
case may be, before making the request to the Chief Justice,
has been satisfied.
……………………………………………………………..”
2026:KER:50011
A.R.No.292 of 2025
18
13. Undoubtedly, the scheme also contemplates rejection
of a request made by any party if it is not in accordance with the
provisions of the scheme. However, the expression employed is
that the Chief Justice or the person or the institution designated
by him ‘may reject it’. The learned counsel is also correct in
making the submission that the Kerala Arbitration and
Conciliation (Court) Rules, 1997 refers to the scheme and
therefore the scheme has been made part of the Rules by
incorporation through reference.
14. Nevertheless, the pertinent issue to be considered in
view of the rival submissions made in this regard is as to how
should the expression ‘duly certified copy thereof’ employed in
paragraph 2 of the scheme shall be construed.
15. It is clear from Section 7 of the Arbitration and
Conciliation Act that there is no particular form prescribed for an
arbitration agreement. Section 7 reads as under:-
2026:KER:50011
A.R.No.292 of 2025
19“7. Arbitration agreement.–(1) In this Part,
“arbitration agreement” means an agreement by the
parties to submit to arbitration all or certain disputes
which have arisen or which may arise between them in
respect of a defined legal relationship, whether
contractual or not.
(2) An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a
separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is
contained in–
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other
means of telecommunication including communication
through electronic means which provide a record of the
agreement; or
(c) an exchange of statements of claim and defence in
which the existence of the agreement is alleged by one
party and not denied by the other.
(5) The reference in a contract to a document
containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing and
the reference is such as to make that arbitration clause
part of the contract.”
16. The stipulation under Section 7(2) is that an
arbitration agreement may be in the form of an arbitration clause
in a contract or in the form of a separate agreement. Sub-section
(3) specifies that an arbitration agreement shall be in writing.
Nevertheless, sub-section (4) provides that an arbitration
2026:KER:50011
A.R.No.292 of 2025
20
agreement is in writing in the following situations: –
1) If it is contained in a document signed by the
parties.
2) If it is contained in an exchange of letters, telex,
telegrams or other means of communication
(including communication through electronic
means) which provide a record of the
agreement.
3) If it is contained in an exchange of statements of
claim and defence, in which the existence of the
agreement is alleged by one party and not
denied by the other.
Therefore, an arbitration agreement can be inferred in a variety
of scenarios including communication through electronic means
which provide a record of the agreement. It can even be inferred
from exchange of statement of claims and defence.
Consequently, it is not the mandate of the Act that the
arbitration agreement shall be inevitably in the usual format of
an agreement in writing. The scheme has been framed to
2026:KER:50011
A.R.No.292 of 2025
21
facilitate filing of applications for reference under Section 11 of
the Act and hence the references in the scheme to “arbitration
agreement” shall be understood bearing in mind the distinctive
features of the provisions of Section 7 of the Act outlined above.
17. In my view, the requirement under the scheme that
the arbitration request shall be accompanied by original of the
agreement or a duly certified copy thereof has to be understood
taking note of the fact that there is no particular format
prescribed under the Arbitration and Conciliation Act. Therefore,
if it is insisted that the expression ‘duly certified copy thereof’, in
paragraph 2 of the scheme unvaryingly contemplates certification
by a public authority, the same would be against the spirit of
Section 7 of the Act.
18. As rightly pointed out by the learned Senior Counsel
for the petitioners, an arbitration agreement need not be
necessarily a public document. The agreement may be a public
document in some cases. Nevertheless, in large number of cases,
2026:KER:50011
A.R.No.292 of 2025
22
the agreements will fall only within the scope of the expression
‘private documents’ as mentioned in Section 74 and 75 of the
Evidence Act corresponding to Section 74 of BSA. In such
situations there cannot be any certification of a copy of the
agreement by a public authority. Therefore, the expression “duly
certified copy thereof” employed in paragraph 2(1)(a) of the
Scheme, in the case of private agreements, can only mean
copies duly attested by the parties to the agreement or their
counsel.
19. Nevertheless, to ensure authenticity, appropriate
measures can be insisted by the Registry. If the original or a
copy certified by any public authority is not produced, it can be
insisted that the party should state in the affidavit to be filed
along with the memorandum of arbitration request, as stipulated
under paragraph 2(1)(b) of the scheme, that the copy of the
arbitration agreement produced is a true copy of the original
agreement. It can also be insisted that the party should state in
2026:KER:50011
A.R.No.292 of 2025
23
the affidavit the reason for non-production of the original or a
copy certified by any public authority. If the party complies with
these requirements and the party himself or the counsel certifies
the copy of the arbitration agreement produced, the requirement
under paragraph 2(1)(a) of the scheme can be deemed to have
been fulfilled.
20. It is also pertinent to note that if the respondents do
not dispute the existence of the arbitration agreement, no
earnest purpose would be served by insisting that the petitioner
should produce the original of the agreement or a copy certified
by a public authority while lodging the arbitration request.
Likewise, there may be cases in which the original of the
agreement may in the custody of the respondent/respondents in
the arbitration request. If arbitration requests are not taken on
file for want of production of original of the agreements or copies
certified by a public authority thereof even when the opposite
party may not have any dispute regarding the genuineness of the
2026:KER:50011
A.R.No.292 of 2025
24
copy produced or when the original is in the custody of the
opposite party, the avowed object of promoting arbitration as a
robust alternative dispute resolution mechanism will be
frustrated. The sublime intention of the law of arbitration is to
promote settlement of disputes through the alternative
mechanism of arbitration in a more effective and speedy manner.
Limited intervention by the courts at all stages is an
acknowledged feature of arbitration. Termination of arbitral
proceedings in the prenatal stage by the referral courts
exercising constricted jurisdiction whimsically, citing procedural
imperfections, is therefore undesirable.
21. It is also relevant to note that rejection of the request
as mentioned in paragraph 6 of the scheme is not mandatory.
The paragraph is extracted hereunder for ready reference;-
“6. Rejection of request. – Where request made by
any party under paragraph 2 is not in accordance with
the provisions of this Scheme, the Chief Justice or the
person or the institution designated by him may reject
it.”
2026:KER:50011
A.R.No.292 of 2025
25
Using of the expression “may” in paragraph 6 is significant and it
denotes that even in case of non-compliance of the requirements
under Paragraph 2, discretion is still available to the court.
Hence, I reject the contention of the respondent that the
arbitration request is liable to be rejected for non-production of
the original/duly certified copy of the arbitration agreement.
22. In the case in hand, as already noticed, the
respondent has no contention that there was no such partnership
deed or Annexure-I produced is a fabricated document. In other
words, there is no dispute regarding the genuineness of the
arbitration agreement. In such a situation, if the arbitration
request is rejected for the sole reason that the original of the
arbitration agreement or a duly certified copy thereof has not
been produced, the same would result in travesty of justice.
Resolution of disputes between the petitioners and the
respondent is essential in the interest of both sides. When there
is no quarrel regarding the genuineness of the arbitration
2026:KER:50011
A.R.No.292 of 2025
26
agreement between the parties and yet the arbitration request is
rejected for non-production of original of the agreement or a
copy certified by a public authority, it will be inconsistent with the
objectives of the Act itself.
23. Likewise, though the prayer in this arbitration request
is for appointment of a sole Arbitrator it need not be rejected for
that reason. The arbitration clause in Annexure-I envisages
arbitration by two Arbitrators, one each nominated by both sides.
At first blush, it may appear that the said clause is inconsistent
with Section 10 of the Arbitration and Conciliation Act. However,
as rightly argued by the learned Senior Counsel for the
petitioners, in view of the law laid down in M.M.T.C. Ltd.
(supra), the arbitration clause cannot be held unenforceable for
the sole reason that an even number of Arbitrators is specified in
the arbitration clause.
24. It is apposite to refer to the following paragraph of the
judgment in M.M.T.C. Ltd. (supra) in this connection:
2026:KER:50011
A.R.No.292 of 2025
27“7. Chapter II of the New Act contains Sections 7 to 9
under the heading ‘Arbitration Agreement’. Chapter III
under the heading ‘Composition of Arbitral Tribunal’
contains Sections 10 to 15.
8. Sub-section (3) of Section 7 requires an arbitration
agreement to be in writing and sub-section (4)
describes the kind of that writing. There is nothing in
Section 7 to indicate the requirement of the number of
arbitrators as a part of the arbitration agreement. Thus,
the validity of an arbitration agreement does not
depend on the number of arbitrators specified therein.
The number of arbitrators is dealt with separately in
Section 10 which is a part of machinery provision for
the working of the arbitration agreement. It is,
therefore, clear that an arbitration agreement
specifying an even number of arbitrators cannot be a
ground to render the arbitration agreement invalid
under the New Act as contended by the learned
Attorney General.”
The Apex Court has unequivocally held that an arbitration
agreement cannot be held invalid for the mere reason that an
even number of arbitrators was specified in it.
25. Moreover, the arbitration clause in Annexure-I also
speaks about nomination of a third Arbitrator as Umpire in the
case of difference of opinion between the two Arbitrators. It is
also to be noted that the learned Senior Counsel for the
2026:KER:50011
A.R.No.292 of 2025
28
petitioners submitted that though the relief sought is for
appointment of a sole Arbitrator, this Court may nominate two
Arbitrators in tune with the arbitration clause in the agreement.
Hence, I don’t find merit in the contention raised by the
respondent with respect to the number of Arbitrators mentioned
in the arbitration clause being inconsistent with Section 10 of the
Act.
26. The learned counsel for the respondent vehemently
contended as noted in the previous paragraphs that this
arbitration request has been filed without any bonafides and it is
only an attempt to defeat the criminal proceedings initiated at
the instance of the respondent. There are undeniably serious
disputes between the parties. Hence the petitioners seek
appointment of an Arbitrator. They have invoked the arbitration
clause in Annexure-I agreement. It may be true that a crime has
been registered against the petitioners. However, for the sole
reason that criminal prosecution is pending against the
2026:KER:50011
A.R.No.292 of 2025
29
petitioners, it cannot be contended that the arbitration
proceedings are barred. Pendency of arbitration proceedings
need not impede the investigation against the petitioners and
resultant proceeding if any also. Hence, for the reason that a
crime has been registered against the petitioners also, this
arbitration request is not liable to be rejected.
27. Rival contentions of the parties regarding the merits of
the disputes among them are not liable to be examined in detail
by this Court in a proceeding under Section 11 of the Arbitration
and Conciliation Act. Those are matters to be decided on the
basis of evidence. Adjudication on merits is strictly within the
realm of arbitral proceedings and hence I do not venture to
comment upon the contentions pertaining to merits of the core
disputes between the parties advanced by both sides during the
course of hearing.
28. Having found prima facie that there is an arbitration
agreement between the parties, this Court has to necessarily
2026:KER:50011
A.R.No.292 of 2025
30
nominate Arbitrators to resolve the disputes between the parties.
The arbitration request is therefore allowed. The following
directions are issued: –
(i) The Kerala High Court Arbitration Center is
directed to nominate two Arbitrators from Panel
III in tune with the arbitration clause in
Annexure-I partnership deed to adjudicate the
disputes between the petitioners and the
respondents pertaining to the said partnership
deed as also all matters arising thereunder.
(ii) The learned Arbitrators may entertain all issues
between the parties in connection with the said
Agreement, including questions of jurisdiction
and limitation, if any, raised by the parties. All
contentions of the parties are left open and
they are at liberty to raise their claims and
counterclaims, if any, before the learned
Arbitrators, in accordance with law.
(iii) The Registry shall communicate the substance
of this order to the Kerala High Court
2026:KER:50011
A.R.No.292 of 2025
31Arbitration Centre within ten days and the
Centre shall inform the learned Arbitrators
within a further period of one week and shall
obtain duly signed Form 3 as required under
Rule 20(4) of the Kerala High Court (Arbitration
Centre) Rules, 2025 and forward the same to
this Court.
(iv) Upon receipt of the Form 3, the Registry shall
issue a certified copy of this order with a copy
of the Form 3 appended to the Kerala High
Court Arbitration Centre. The original of the
Disclosure Statement shall be retained by the
Kerala High Court Arbitration Centre.
(v) The fees of the learned Arbitrators of the Kerala
High Court Arbitration Centre shall be governed
by Rule 28 of the Kerala High Court (Arbitration
Centre) Rules, 2025. The manner in which the
fees and costs payable by the parties shall be
governed by Rule 27 of the Kerala High Court
(Arbitration Centre) Rules, 2025.
2026:KER:50011
A.R.No.292 of 2025
32
(vi) If the learned Arbitrators need the assistance of
an expert, then they are at liberty to seek such
assistance in the course of the arbitration
proceedings.
29. It is clarified that the observations and conclusions in
this order pertaining to production of original of the arbitration
agreement or duly certified copy thereof are made wholly in the
context of the said requirement under the Scheme for
Appointment of Arbitrators by the Chief Justice of High Court of
Kerala, 1996.
Registry shall take note of the observations in paragraph
19 of this order.
Sd/-
S.MANU
JUDGE
skj
2026:KER:50011
A.R.No.292 of 2025
33
APPENDIX OF AR NO. 292 OF 2025
PETITIONERS’ ANNEXURES
Annexure I TRUE COPY OF THE RECONSTITUTED
PARTNERSHIP DEED DATED 29.01.2009
Annexure II TRUE COPY OF FIR IN CRIME NO. 625/2024
OF HARBOUR POLICE STATION
Annexure III TRUE COPY OF LEGAL NOTICE DATED
14.08.2025 PROPOSING TO APPOINT THE
ARBITRATOR
Annexure IV TRUE COPY OF ACKNOWLEDGEMENT CARD DATED
18.08.2025 SHOWING THE RECEIPT OF
ANNEXURE-III LEGAL NOTICE ON 16.08.2025
BY THE RESPONDENT
Annexure V TRUE COPY OF JUDGMENT DATED 16-12-2025
IN AR NO.221 OF 2025 OF THIS COURT
RESPONDENT’S EXHIBITS
Annexure-R1(a) Copy of Partnership Deed dated
09.03.2017
Annexure-R1(b) Copy of Partnership Deed dated
24.07.2017.
Annexure-R1(c) Copy of a recent Indemnity deed dated
22/06/2024 executed by the petitioner 2
to 4 along with another partner
Annexure-R1(d) Copy of the relevant portion of the
balance sheet of the 1 st Petitioner for
the year ended 31.03.2023 submitted to
the Income Tax authorities by the
Petitioners (shown to the Respondent by
the police during investigation of the
crime for clarification)
Annexure-R1(e) Copy of the relevant portion of the
balance sheet of the 1 st Petitioner for
the year ended 31.03.2024 submitted to
2026:KER:50011
A.R.No.292 of 2025
34
the Income Tax authorities by the
Petitioners (shown to the Respondent by
the police during investigation of the
crime for clarification)
Annexure-R1(f) Copy of the Indian Income Tax Return
Acknowledgment of the 1st Petitioner for
the Assessment Year 2024- 25 similarly
shown by the police to this Respondent
digitally signed by the 2 nd Petitioner
