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2007 DIGILAW 41 (MAD)

A. Thangavelu & Others v. A. Ramasamy & Others

2007-01-04

S.ASHOK KUMAR

body2007
Judgment :- As against the order passed in in I.A.No. 3 of 2005 in A.P.No.19 of 2004 passed by the learned Arbitrator rejecting the request of the revision petitioners to dismiss the Arbitration Proceedings. 2. Interlocutory Application No.3 of 2005 has been filed before the Sole Arbitrator by the revision petitioners/partners contending that they have not consented for the nomination of the Arbitrator and they were not willing to refer the matter for arbitral tribunal. Moreover O.S.No.1488 of 2003 has been filed before the Prl.Subordiante Judge, Coimabatore against the partners of the Kalyana Mandapam in respect of joint family properties including the Kalyana Mandapam and interim injunction was also obtained not to alienate the said property. Hence they are not in a position to submit to the arbitration proceedings in respect of the Kalyana Mandapam property. This fact was already communicated to the previous Arbitrator and also to the present Arbitrator raising their objections. The first respondent also filed Arbitration O.P.No.68 of 2004 before the First Addl.District Judge, Coimbatore u/s.9 of the Arbitration and Conciliation Act and in the I.A.417 of 2004 an Advocate commissioner was also appointed to note down the physical features and to take inventory in respect of the Kalyana Mandapam. Hence they prayed for dismissal of the arbitration proceedings. 3. The respondents field a counter stating that as regards the constitution of the previous arbitral tribunal, no reply or objection was sent by any of the revision petitioners within time. After demise of the previous arbitrator the present Sole Arbitrator has been appointed who called upon the parties to appear before him on 211. 2004. But the petitioners have not taken any objection within time and hence now they cannot challenge the constitution of the Arbitral Tribunal. Further, 2.41 acres of Kalyana Mandapam property was purchased only in the name of five brothers and only 0.86 acres has been taken out from and out of the joint family properties which is the subject matter of the suit in O.S.No:1405 of 1998. 2.41 acres is not the subject matter of the said suit. The said suit was filed by the legal heirs of Late A.Palanisamy against the brothers of late A.Palanisamy and a compromise decree for partition was passed by the court. Hence the present suit filed by the legal heirs of late A.Palanisamy in O.S.No:1488 of 2003 is an abuse of process of law. 4. The said suit was filed by the legal heirs of Late A.Palanisamy against the brothers of late A.Palanisamy and a compromise decree for partition was passed by the court. Hence the present suit filed by the legal heirs of late A.Palanisamy in O.S.No:1488 of 2003 is an abuse of process of law. 4. The learned Sole Arbitrator on a consideration of the both oral and documentary evidence dismissed the said Interlocutory Application. Aggrieved of the same, the present revision has been filed. .5. Learned counsel for the revision petitioners contended that the Kalyana Mandapam which is the subject matter of the Arbitration proceedings is also the subject matter of the pending suit filed by the daughter of the deceased brother in O.S.No.1488 of 2003 claiming the same as a joint family property. In the said suit injunction has also been granted from alienating the said property and hence the arbitration proceedings to frame a scheme and to render accounts cannot be continued for the present since the title to the Kalyana Mandapam itself is yet to be decided by the trial court. Further the substitution procedure for appointing the present Arbitrator is not correctly followed and since the condonation period is not provided under Section 13, Section 5 of the Limitation Act automatically applies to the present case. 6. Admittedly the arbitration proceedings has been initiated for framing a scheme for proper running of the same and to render accounts and mesne profits and so the persons who are not parties to the Partnership deed have nothing to do with the said property. It is the contention of the respondents 1 and 2 that 86 cents of land of the joint family property was set apart for the use of the Kalyanamandapam in the compromise decree in O.S.No:1405 of 1998 and the Kalyanamandapam is a separate property of the partners and so it is not included in O.S.No.1488 of 1998 and A.Sundaram is not a partner. 7. As regards the contention that there is an objection for the constitution of the arbitral tribunal though all the partners except the 2nd petitioner Ganesan received the letters in the monthly of July 2004 and the letter sent to Ganesan returned as not claimed, under Section 13(2) of the Act the said appointment has not been challenged by written statement within 15 days after becoming aware of the constitution of the arbitral tribunal. The other partners have not proved that they have written to A.Ramasamy the Claimant, objecting to the said appointment of the sole arbitrator. Though they allege that they sent a communication expressing their unwillingness, they have not proved the same. No copy of objection is filed nor the date of sending is given. .8. The next contention that the substitution procedures followed after the demise of the first arbitrator, the present arbitrator after his being appointed directed the parties to appear before him on 22.l1.2004. But the petitioners have not filed their written objection within 15 days as provided under Section 13(2) of the Act. The copy of the telegram dated 111. 2004 only shows that it has been sent to a wrong address without street, number and place of sole arbitrator residence and hence it was not delivered to him. Hence it has to be held that there is no valid objection in the eye of law. There is no written statement following the said telegram. Therefore the petitioners cannot allege that there is a flaw in the substitution procedure. 9. As regards the pendency of the suit in O.S.No:1488 of 2003, the arbitration proceedings is not for deciding the title of the said property and it is only to frame a scheme for the proper management of the property. The plaintiff is not a partner to the firm and any award passed in the arbitration proceedings will not bind the plaintiff. Further, 2.41 acres of Kalyana Mandapam property was purchased only in the name of five brothers and only 0.86 acres has been taken out from and out of the joint family properties which is the subject matter of the suit in O.S.No:1405 of 1998. 2.41 acres is not the subject matter of the said suit. The said suit was filed by the legal heirs of Late A.Palanisamy against the brothers of late A.Palanisamy and a compromise decree for partition was passed by the court. As rightly contended by the learned counsel for the respondents, if really 2.41 acres of Mandapam property is the joint family property, Thiru Sundaram who is not a partner of the firm, would have taken objection for not including the same in the earlier suit in O.S.No.1405 of 1998. Under these circumstances, I do not find any error or infirmity in the order passed by the learned Sole Arbitrator. 10. Under these circumstances, I do not find any error or infirmity in the order passed by the learned Sole Arbitrator. 10. In the result, the CRP and the connected CMP are dismissed. No costs.