AR NO. 219 OF 2024 1 2025:KER:15441 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. THURSDAY, THE 20TH DAY OF FEBRUARY 2025/1ST PHALGUNA, 1946 AR NO.219 OF 2024 PETITIONER: M/S EDASSERY AGENCIES REPRESENTED BY ITS PROPRIETOR SAJU E.S., AGED 52, S/O.SEBASTIAN, 9/9C, PUTHIYEDOM, SOUTH BAZAR, KANJOOR P.O., ERNAKULAM, PIN - 683575 BY ADVS. SABU FRANCIS C.T.APPACHEN RESPONDENTS: 1 M/S.KUNNATH PHARMACEUTICALS ADMINISTRATIVE OFFICE AT OS-15, 3RD FLOOR, G.C.D.A. COMPLEX, MARINE DRIVE, COCHIN-682031 NOW RESIDING AT KUNNATH HOUSE, JANSAKTHI ROAD, MUDAVOOR P.O., MUVTTUPUZHA, REPRESENTED BY SMT.LISSA ABRAHAM, AGED 63, W/O.LATE KC. ABRAHAM, KUNNATH HOUSE, JANSAKTHI ROAD, MUDAVOOR P.O., MUVTTUPUZHA, PIN - 686669 2 SMT.LISSA ABRAHAM AGED 63 YEARS W/O LATE K.C.ABRAHAM, KUNNATH HOUSE, JANSAKTHI ROAD, MUDAVOOR P.O., MUVTTUPUZHA, PIN - 686669 3 SMT.LIDIYA ABRAHAM AGED 35 YEARS D/O LATE K.C. ABRAHAM, KUNNATH HOUSE, JANSAKTHI ROAD, MUDAVOOR P.O., AR NO. 219 OF 2024 2 2025:KER:15441 MUVTTUPUZHA, PIN - 686669 4 SMT.LIDA ABRAHAM AGED 33 YEARS D/O LATE K.C.ABRAHAM, KUNNATH HOUSE, JANSAKTHI ROAD, MUDAVOOR P.O., MUVTTUPUZHA, PIN - 686669 5 SMT.DR.LIYA ABRAHAM AGED 28 YEARS D/O LATE K.C.ABRAHAM, KUNNATH HOUSE, JANSAKTHI ROAD, MUDAVOOR P.O., MUVTTUPUZHA, PIN - 686669 BY ADVS. M.GOPIKRISHNAN NAMBIAR, R1, R2 & R4 K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) IZHAR MOHAMMED(K/2855/2022) THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 20.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AR NO. 219 OF 2024 3 2025:KER:15441 O R D E R Dated this the 20th day of February, 2025 This Arbitration Request is filed invoking Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) to appoint an Arbitrator to resolve the disputes that have arisen between the applicant and the respondents under Annexure 1 agreement. 2. Applicant is a proprietary concern. It had entered into an agreement for distribution dated 10.03.2017 with the 1st respondent whereby the applicant was appointed as the super stockist for the entire state for the purpose of distributing and selling the products manufactured and marketed by the 1st respondent. The said agreement contained an arbitration clause. It is stated that the proprietor of the 1st respondent passed away on 19.11.2020 and respondents 2 to 5 are his legal heirs. Annexure 2 and Annexure 3 are produced to corroborate the same. After the demise of the proprietor, the 3rd respondent, one of the legal heirs, had purportedly issued Annexure 4 letter dated nil acknowledging a debt of Rs.61,75,500/- from the 1st respondent to the applicant. Since the AR NO. 219 OF 2024 4 2025:KER:15441 amount remained outstanding, Annexure 5 notice was issued to the respondents by the applicant demanding payments of the amounts due. Service of the said notice upon respondent Nos.1 and 2 are revealed from Annexures 6 and 7. Since the amounts due were not paid in spite of the demand, the applicant proceeded to invoke the arbitration as envisaged in the Annexure 1 agreement. Annexure 12 notice dated 09.02.2024 was accordingly issued by the applicant to the respondents invoking the arbitration clause and nominating an Arbitrator. The nominated Arbitrator thereafter issued Annexure 13 notice which respondents 1, 2 and 4 accepted. Respondents 3 and 5 had refused the said notice. A reply notice produced as Annexure 14 has been caused to be issued by respondents 1, 2 and 4 inter alia stating that the nominated Arbitrator has been unilaterally appointed and that they do not wish to move forward with the arbitration proceedings. It is at such juncture that the applicant has preferred this Arbitration Request invoking Section 11 of the Act. 3. A counter affidavit has been filed by respondent 1,2 and 4 in the Arbitration Request inter alia stating that the applicant is not entitled to any amounts as claimed and that the document relied on AR NO. 219 OF 2024 5 2025:KER:15441 to claim the amount of Rs.61,75,000/- is a fabricated one. It is further stated that no notice of invocation as claimed had been issued and that appointment was brought to the notice of the said respondents only when the unilaterally nominated Arbitrator issued the statutory disclosure letter. The counter affidavit thus sought a dismissal of the Arbitration Request. Subsequent thereto, the applicant has filed Annexures 15 to 21 along with I.A.No.1 of 2025 filed in the Arbitration Request, so as to substantiate the contention that invocation notice had been issued to all the respondents. 4. Heard Sri.Sabu Francis, Advocate, for the applicant and Sri.M.Gopikrishnan Nambiar, Advocate, for respondents 1, 2 and 4. Though service was complete as against respondents 2, 3 and 5 there was no appearance on their behalf. 5. The arbitration clause in Annexure 1 agreement reads as follows: “It is agreed between the parties that all disputes arising out of or in connection with the matters relating to this agreement shall be decided only by way of arbitration as provided under the Arbitration and Conciliation Act, 1986 and the venue of arbitration shall be only at Ernakulam. It is further agreed between the parties that either party may nominate one Arbitrator and such appointment may be concurred by other party or in case of any failure to concur on such appointment of Arbitrator, further action can be initiated for arbitration as provided under law. It is further unambiguously agreed among the parties that in AR NO. 219 OF 2024 6 2025:KER:15441 case of any dispute whatsoever arising out of or in connection with this contract and/or the arbitration proceedings the same shall be subject to the jurisdiction of courts at Ernakulam only.” The said clause unequivocally stipulates arbitration as the means of dispute resolution between the parties with respect to disputes and differences under Annexure 1. The 1st respondent is a proprietary concern and respondents 1 to 5 are the legal heirs of the deceased proprietor of the 1st respondent. The 3rd respondent had vide Annexure 4 acknowledged the debt on behalf of the 1st respondent, however, the same has been alleged to be a fabricated document by respondents 1, 2 and 4. Issuance of Annexures 5 and Annexure 8 lawyer notices and its receipt stands acknowledged vide Annexures 6, 7, 9, 10 and 11. The invocation of the arbitration clause vide Annexure 12 letter is evidenced by Annexures 15 to 21, though its receipt is denied by respondents 1, 2 and 4. Issuance of Annexure 13 notice by the nominated Arbitrator is not denied by respondents 1, 2 and 4. Their objection to the same is that the Arbitrator has been unilaterally appointed. It is trite law that it is not open to either of the parties to unilaterally appoint an Arbitrator for the resolution of the disputes. [See Trf Ltd. v. Energo Engineering Projects (2017 AR NO. 219 OF 2024 7 2025:KER:15441 KHC 4463), Perkins Eastman Architects DPC and another v. HSCC (India) Ltd. (2019 KHC 7173) and Central Organisation for Railway Electrification v. M/s.ECI SPIC SMO MCML (JV) (2024 KHC OnLine 6620)]. Hence the objection regarding the unilateral appointment of Arbitrator is valid. 6. I note that all the essential elements to constitute an arbitration agreement viz., (1) The presence of a present or a future difference in connection with some contemplated affair. (2) Intention of the parties to settle such differences by a private Tribunal. (3) Agreement in writing to be bound by the decision of such Tribunal, and (4) the parties being in ad idem regarding same, are found satisfied. [See Babanrao Rajaram Pund v. Samarth Builders & Developers and another (2022) 9 SCC 691]. The invocation of the arbitration clause is evidenced by Annexures 12 and 15 to 21. It is trite that the Arbitrator can decide on questions regarding jurisdiction/arbitrability/maintainability and limitation, if any, in the arbitration proceedings. All legal contentions, including objections available to the respondents, can be kept open to be taken up before the learned Arbitrator as mandated in SBI General AR NO. 219 OF 2024 8 2025:KER:15441 Insurance Co. Ltd v. Krish Spinning [(2024) SCC OnLine SC 1754]. 7. In view of the above, I find that this Arbitration Request is fit to be allowed and that a retired District Judge from the panel of Arbitrators maintained by this Court can be appointed as the Arbitrator. 8. Accordingly, this Arbitration Request stands allowed and it is ordered as follows : (i) Smt.K.P.Indira, Retired District Judge, B-10IJ, Chakolas Orange Park, Edachira P.O., Thengode, Kochi-682 030, is nominated as the sole Arbitrator to resolve the disputes that have arisen between the applicant and the respondents under the Annexure-1 agreement. (ii) The learned Arbitrator may entertain all disputes/ issues between the parties in connection with the said agreement, including questions of jurisdiction, maintainability, arbitrability and limitation, if any, raised by the parties. (iii) The Registry shall communicate a copy of this order to the learned Arbitrator within ten days from today and obtain a AR NO. 219 OF 2024 9 2025:KER:15441 Statement of Disclosure from the learned Arbitrator as stipulated under Section 11(8) read with Section 12(1) of the Act. (iv) Upon receipt of the Disclosure Statement, the Registry shall issue to the learned Arbitrator a certified copy of this order with a copy of the Disclosure Statement appended. The Original of the Disclosure Statement shall be retained in Court. (v) The fees of the learned Arbitrator shall be governed by the Fourth Schedule of the Act. Sd/- SYAM KUMAR V. M. JUDGE csl AR NO. 219 OF 2024 10 2025:KER:15441 APPENDIX OF AR 219/2024 PETITIONER'S ANNEXURES Annexure 1 TRUE COPY OF AGREEMENT EXECUTED BETWEEN MR.K.C.ABRAHAM & APPLICANT DATED 10.03.2017 Annexure 2 TRUE COPY OF DEATH CERTIFICATE OF M. KC. ABRAHAM DATED 06.12.2020 Annexure 3 TRUE COPY OF LEGAL HEIRSHIP CERTIFICATE OF LATE KC. ABRAHAM DATED 27.02.2021 Annexure 4 TRUE COPY OF ACKNOWLEDGMENT OF DEBT ISSUED BY THE 3RD RESPONDENT DATED MAY 2023 Annexure 5 TRUE COPY OF LAWYER NOTICE ISSUED TO ALL RESPONDENTS BUT ACCEPTED BY 1ST AND 2ND RESPONDENTS ONLY DATED 21.10.2023 Annexure 6 TRUE COPY OF ACKNOWLEDGMENT CARD SIGNED FOR THE 1ST RESPONDENT DATED NIL Annexure 7 TRUE COPY OF ACKNOWLEDGMENT CARD SIGNED BY THE 2ND RESPONDENT DATED NIL Annexure 8 TRUE COPY OF LAWYER NOTICE ISSUED TO 3RD, 4TH, AND 5TH RESPONDENTS DATED 11.12.2023 Annexure 9 TRUE COPY OF LAWYER NOTICE REFUSED BY 3RD RESPONDENT DATED NIL Annexure 10 TRUE COPY OF LAWYER NOTICE REFUSED BY THE 4TH RESPONDENT DATED NIL Annexure 11 TRUE COPY OF LAWYER NOTICE REFUSED BY THE 5TH RESPONDENT DATED NIL Annexure 12 TRUE COPY OF NOTICE ISSUED BY THE APPLICANT TO ALL RESPONDENTS APPOINTING SRI.NISHIN GEORGE VIJAYABABU ADVOCATE, AS AR NO. 219 OF 2024 11 2025:KER:15441 THE SOLE ARBITRATOR DATED 09.02.2024 Annexure 13 TRUE COPY OF STATUTORY DISCLOSURE NOTICE ISSUED BY ADV.NISHIN GEORGE VIJAYABABU TO ALL RESPONDENTS AND APPLICANT DATED 05.05.2024 Annexure 14 TRUE COPY OF REPLY LAWYER NOTICE ISSUED FOR AND ON BEHALF OF RESPONDENTS 1,2, AND 4 DATED 08.06.2024 Annexure 15 PRINT OUT PHOTO OF ANNEXURE-12 BEARING THE STICKER NUMBER OF POSTAL AUTHORITY SENT BY THE PETITIONER TO THE 1ST RESPONDENT Annexure 16 PRINT OUT PHOTO OF ANNEXURE-12 BEARING THE STICKER NUMBER OF POSTAL AUTHORITY SENT BY THE PETITIONER TO THE 2ND RESPONDENT Annexure 17 PRINT OUT PHOTO OF ANNEXURE-12 BEARING THE STICKER NUMBER OF POSTAL AUTHORITY SENT BY THE PETITIONER TO THE 3RD RESPONDENT Annexure 18 PRINT OUT PHOTO OF ANNEXURE-12 BEARING THE STICKER NUMBER OF POSTAL AUTHORITY SENT BY THE PETITIONER TO THE 4TH RESPONDENT Annexure 19 PRINT OUT PHOTO OF ANNEXURE-12 BEARING THE STICKER NUMBER OF POSTAL AUTHORITY SENT BY THE PETITIONER TO THE 5TH RESPONDENT Annexure 20 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POS. ALUVA DIVISION TO ISSUE CERTAIN DOCUMENT SHOWING REGISTRATION OF ADDITIONAL ANNEXURE 15 TO 19, DATED 24/01/2025 Annexure 21 TRUE COPY OF REPLY TO ADDITIONAL ANNEXURE 20 ISSUED BY THE SUPERINTENDENT, ALUVA TO THE PETITIONER DATED 27/1/2025