IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 18TH DAY OF MARCH 2025 / 27TH PHALGUNA, 1946 OP(C) NO. 2418 OF 2022 IN CMA(Arb) No.839 OF 2022 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM PETITIONER: M/S. HEDGE FINANCE LIMITED. AGED 42 YEARS M/S. HEDGE FINANCE LIMITED, HEDGE HOUSE, MAMANGALAM, PALARIVATTOM, ERNAKULAM, KOCHI- 682 025, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER MR. ANILKUMAR K T, SON OF THANKAPPAN PILLAI, AGED 42, KUNDOOR HOUSE, THIRUVILWAMALA, THRISSUR., PIN - 680588 BY ADVS. SHIJU VARGHESE SACHU THOMAS RESPONDENT: MAHESH M KUNNUMPURATHU HOUSE, PANAMPATTA, AVANEESWARAM, PIDAVOOR, KOLLAM, PIN - 689695 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPC 2418/2022 -2- 2025:KER:24344 JUDGMENT (Dated this the 18 th day of March, 2025) The petitioner has approached this Court, challenging Ext.P4 order in CMA (Arbitration) No.839/2022, on the files of the Additional District & Sessions Court-VIII, Ernakulam. dated 11.11.2022. 2. The petitioner is a non-banking finance company. The petitioner and the respondent entered into Ext.P1 Loan Agreement wherein, by mutual consent of the parties, an Arbitrator was appointed to resolve the disputes and he passed Ext.P2 interim order. Later the petitioner filed Ext. P3 CMA(Arbitration) to execute the Ext.P2 interim order before the Additional District Court-VIII, Ernakulam. The court suo motu conducted an enquiry regarding the maintainability of the CMA(Arbitration) and in the light of the judgment of this Court in OP(C) No.1263/2022 dated 02.08.2022, by Ext.P4 order dated 11.11.2022, ordered that the appointment is ex- facie bad and the award is unenforceable. Hence, the decree OPC 2418/2022 -3- 2025:KER:24344 holder was directed to produce the order appointing the arbitrator or the agreement in writing between the parties, post the dispute, agreeing to waive the applicability of Section 12 or to file an affidavit to that effect. It is aggrieved by the same, the present original petition has been filed. 3. It is brought to the notice of this Court the judgment of this Court in OP(C) No.1035/2024 dated 05.02.2025, wherein similar issue has been considered by this Court. The petitioner seeks similar reliefs from this Court. The operative portion of the said judgment reads thus: “5. Coming to the facts of this case, it can be seen that along with Ext.P1 agreement and guarantee, Ext.P2 Arbitration agreement was also entered on the same day, wherein the company, borrower and guarantor have agreed to appoint Mr. Muralidharan Nair or Adv. Raja Sekhar V. as the sole arbitrator. So, the facts in Hedge Finance Pvt. Ltd, as well as this case, is not one and the same. 6. In view of the fact that the Arbitrator was appointed by consent of both parties at the time of agreement itself, I am of the opinion that Ext.P4 order passed by the execution court in E.P No. 55/2022 requires reconsideration. In the result, Ext.P4 is set aside and there will be a direction to the execution court to reconsider the order in E.P No. 55/2022 in A.R.C No. 46/2019, in the light of the observations as mentioned above.” OPC 2418/2022 -4- 2025:KER:24344 5. The issue involved in this case is similar to that in OP(C) No.1035/2024 disposed of by this Court on 05.02.2025. Therefore, the petitioner herein is also entitled to the same treatment as that of the petitioner in the above case. Hence, the original petition is disposed of in terms of the judgment dated 05.02.2025 in OP(C) No.1035/2024 by setting aside Ext.P4 order in CMA (Arbitration) No.839/2022, on the files of the Additional District & Sessions Court-VIII, Ernakulam dated 11.11.2022 with a direction to reconsider CMA (Arbitration) No.839/2022. Sd/- BASANT BALAJI JUDGE JS OPC 2418/2022 -5- 2025:KER:24344 APPENDIX OF OP(C) 2418/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LOAN AGREEMENT DATED 23.12.2019. Exhibit P2 TRUE COPY OF THE INTERIM ORDER OF THE ARBITRATOR IN I. A NO. 1/2022 IN ARBITRATION REFERENCE NO.272/2022, DATED 27.7.2022. Exhibit P3 TRUE COPY OF THE CMA (ARBITRATION) NO.839/2022 PENDING BEFORE THE HON’BLE VIIITH ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 22.7.2022. Exhibit P4 CERTIFIED COPY OF THE ORDER IN CMA (ARBITRATION). NO.839/2022 OF THE HON’BLE VIIITH ADDL. DISTRICT COURT, ERNAKULAM DATED 11.11.2022