KERALA TABLE TENNIS ASSOCIATION (AFFILIATED TO THE KERALA STATE SPORTS COUNCIL) v. THE TABLE TENNIS FEDERATION OF INDIA & TABLE TENNIS ASSOCIATION OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **AR.No.18 OF 2019** ## **APPLICANT:** **KERALA TABLE TENNIS ASSOCIATION (AFFILIATED TO THE KERALA STATE SPORTS COUCIL), REGIONAL SPORTS CENTRE, KADAVANTHARA, ERNAKULAM, KOCHI-682 020, REPRESENTED BY ITS PRESIDENT MR. S.A.S. NAVAZ.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER** ## **RESPONDENTS:** |**1**|**THE TABLE TENNIS FEDERATION OF INDIA**| |---|---| ||**1-15, 3RD FLOOR, DSIDC COMPLEX, NEAR UDYOG NAGAR**| ||**METRO STATION, ROHTAK ROAD, NEW DELHI-110 041,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**TABLE TENNIS ASSOCIATION OF KERALA**| ||**YMCA, THIRUVANANTHAPURAM-695 001,**| ||**REPRESENTED BY ITS SECRETARY.**| ||**R1 BY ADV. SRI.RONY JOSE**| **THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 22.8.2019 , THE COURT ON 24.10.2019 PASSED THE FOLLOWING:** Arb.No.18/19 2 ## **ORDER Dated this the 24th day of October, 2019** 1.Heard Sri.P.B.Krishnan, learned counsel for the applicant and Sri.Bechu Kurian Thomas, learned Senior Counsel for the 1[st] respondent. 2. The applicant, who is the Kerala State Association affiliated to the Kerala State Sports Council has approached this Court seeking the appointment of an Arbitrator in terms of clause 48 of Annexure A Memorandum of Association of the 2[nd] respondent- Federation. It is submitted that clause 48 of Annexure A provides that all disputes arising between the National Federation and its constituents, and among the constituents themselves, shall be referred to arbitration. It is stated that in March 2018, the 1[st] respondent had required the applicant to amend its constitution in consonance with the byelaws of the Federation and to withdraw voting rights of office bearers and veterans association. This Court had directed the consideration of the issue by the Assistant Director, Arb.No.18/19 3 Department of Sports and Youth Affairs in the Government of Kerala. It is stated that while the matter was pending before the Government, Annexure B notice was issued by the 2[nd] respondent for a special general meeting of the TFFI on 29.9.2018. On that day, Annexure C order was issued disaffiliating the applicant from the Federation and a decision was taken to amend the Constitution of the Federation. The applicant challenged the disaffiliation before this Court by filing W.P.(C).No.32448 of 2018 and a stay of disaffiliation was ordered. It is stated that in the meanwhile, the Special General Body Meeting of the applicant was convened on 4.11.2018 and the regulations of the applicant association were amended withdrawing the voting rights given to office bearers and the veterans association. This fact was informed to the Federation by Annexure B. It was, therefore, contended that the respondents ought to have withdrawn the disaffiliation of the applicant. 3. In the meanwhile, W.P.(C).No.32448 of 2018 was disposed of on 29.11.2018 directing the 2[nd] respondent Federation to Arb.No.18/19 4 consider Exhibit P15 objection preferred by the petitioner to the disaffiliation. The writ appeal filed against the judgment was also dismissed by Annexure F judgment. It is stated that, thereafter, the decision disaffiliating the applicant was confirmed by the Federation. It is submitted that the decision to disaffiliate the applicant was taken by the Executive Board of the 1[st] respondent Federation on 29.9.2018. It is thereafter that the general body meeting held at the same venue took a decision to amend the Constitution of the Federation conferring the power of appointment of sole Arbitrator as the President of the Federation alone. It is, therefore, contended that since a dispute has undoubtedly arisen between the parties and an arbitration is contemplated under the Memorandum of Association of the 1[st] respondent, this Court ought to have appointed an Arbitrator to resolve the disputes. It is stated that in reply to Annexure H letter of the applicant, Annexure I reply has been received stating that Sri.Shekhar Raj Sharma, Advocate, Supreme Court of India is appointed as sole Arbitrator by the Federation to adjudicate the dispute. Arb.No.18/19 5 4. The learned counsel for the applicant relies on the decision of the Apex Court in Walter Bau AG. v. Municipal Corporation of Greater Mumbai and another [(2015) 3 SCC 800] to contend that agreed procedure in the Arbitration Clause is to be strictly followed. The decision in Reva Electric Car Company Private Limited v. Green Mobil [(2012) 2 SCC 93] is also relied on to contend that once the existence of arbitration clause is admitted and once parties have failed to agree on the Arbitrator, the appropriate court has to appoint an Arbitrator under the agreed procedure, the court has to appoint an Arbitrator in terms of Section 11(6). Relying on the decision of Young Achievers v. IMS Learning Resources Private Limited [(2013) 10 SCC 535] it is contended that it is only where a contract is superseded by another, that the arbitration clause which was a part of the earlier contract would fail. However, settlement of disputes arising under the original contract including the dispute as to breach of that contract and its consequences would be referable to arbitration in terms of the earlier contract itself. The decision in National Insurance Company Limited v. Boghara Arb.No.18/19 6 Polyfab Private Limited [(2009) 1 SCC 267] is relied on to contend that the only issues to be decided by this Court are whether there is an arbitration clause and whether the party has approached the correct court. Relying on Indus Mobile Distribution Private Ltd. v. Datawind Innovations Private Ltd. [2017(2) KLT 665 (SC), it is contended that once the seat of arbitration is designated, only the Court having jurisdiction over seat of arbitration will have jurisdiction to entertain application under Sections 9 and 11. It is contended that in the instant case, only the venue of arbitration is provided in the agreement and that therefore, there is ample power in this Court to appoint the Arbitrator. Relying on the decision in Firm Ashok Traders v. Gurumukh Das Saluja [AIR (2004) SC 1433], it is contended that even where there is bar of suit in terms of Section 69 of the Partnership Act (9 of 1932), that bar would not affect the maintainability of an application under Section 9 of the Arbitration and Conciliation Act. 5. The decision of the Delhi High Court in Delhi Table Tennis Association v. Table tennis Federation of India Arb.No.18/19 7 [Arb.P.No.149/2009 dated 18.9.2009] was brought to my notice. It is stated that considering the provisions of Annexure A Memorandum of Association of the opposite party, the Delhi High Court found that no alteration of rules can be made except in a general body meeting by the resolution carried by the 2/3[rd] majority of votes. It was further held that even such alteration would take effect only from the beginning of the following year, unless the meeting otherwise decides. Thereafter, considering the self same arbitration clause, it was held that there was no prerogative given to the Table Tennis Federation to appoint an Arbitrator and therefore the Court under Section 11(6) is free to appoint an Arbitrator. 6. An objection has been placed on record. It is submitted that the jurisdiction to entertain this Arbitration Request would be only with Delhi Courts. It is contended that the final order of disaffiliation of the applicant having been passed on 31.12.2018 by Exhibit R1(d), the question with regard to arbitration would have to be decided in terms of the amended bye-laws of the Federation. Relying on the decisions in Arb.No.18/19 8 Swastik Gases Private Limited v. Indian Oil Corporation Limited [(2013) 9 SCC 32], B.E.Simoes Von Staraburg Niedenthal v. Chhattisgarh Investment Ltd. [2015 (12) SCC 225], Indus Mobile Distribution Pvt.Ltd.v. Datawind Innovations Pvt.Ltd .[2017 (2 SCC 678], it is contended that there is no jurisdiction in this Court to consider the issue. The decision of a Division Bench of this Court in Britannia Industries Ltd.(M/s.)v. R.Easwaran [2018 (3) KLT 832] is also relied upon to contend that even though a person residing anywhere in the Country may have a right of action in law, the jurisdiction of the High Court under Article 226 can be invoked only where the cause of action arises within the territorial jurisdiction of that High Court and in no other situation. The decision of the Apex Court in S.P.Singla Constructions Pvt.Ltd. v. State of Himachal Pradesh ,[(2019) 2 SCC 88] is also relied upon to contend that once the appointment of an Arbitrator had been made by one of the parties in pursuance to the arbitration clause, the court exercising power under Section 11(6) cannot appoint another person as Arbitrator. The learned counsel also relies on the Arb.No.18/19 9 decision of the Apex Court in Brahmani River Pellets Limited v. Kamachi Industries Limited (Civil Appeal No.5850 of 2013), Referring to the earlier decisions of the Apex Court including in Swastik Gases Private Limited v. Indian Oil Corporation Limited [(2013) 9 SCC 32], the Apex Court held that the parties are free to choose the place of arbitration. It was stated that where the cause of action would be deemed to arise in more than one jurisdiction, it was open to the parties to specify the jurisdiction of the court at a particular place where the parties agreed to limit the jurisdiction of a particular place. The question whether a court could have jurisdiction to entertain the arbitration request under Section 11(6) will have to be decided on the basis of the jurisdictional clause, as provided in the contract. 7. In the instant case, it is contented that the jurisdictional clause in the Memorandum of Association provides that jurisdiction shall be limited to the courts in Delhi. This provision in the Memorandum of Association may not be sufficient to exclude the jurisdiction of this Court exercising its power of judicial Arb.No.18/19 10 review under Article 226 of the Constitution of India, if this Court comes to a finding that part of cause of action arises within the jurisdiction of this Court. However, if an application under Section 11(6) to be considered, this Court must be an appropriate court with reference to definition of court under Section 2(e) of the Act, it is contended. 8.I have considered the contentions advanced. Section 2 (e) of the Arbitration and Conciliation Act, 1996 defines “Court” as follows:- “(e) Court means - (i) In case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subjectmatter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court or any Court of Small Causes; (ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High court having jurisdiction to hear appeals from decrees of Courts ” subordinate to that High Court . Arb.No.18/19 11 9.Even if the case of the applicant that Annexure A is the Memorandum of Association of the TTFI which is to be considered for the purpose of this Arbitration Request, the said Memorandum of Association also contains a provision with regard to jurisdiction. Clause 47 of Annexure A reads as follows:- ## “47. **Legal Jurisdiction** No suit in respect of any matter relating to the affairs of the Federation shall be instituted in any court save and except in court of competent jurisdiction of the place where the Federation's Registered office is situated. 10.The disaffiliation of the applicant association from the Federation would fall within the meaning of the expression 'any matter relating to the affairs of the Federation'. In the above view of the matter, in case a suit were to be filed by the with regard to the disaffiliation, going by the arbitration clause in the Memorandum of Association which is relied on by the applicant for preferring this arbitration request, the 'court' as defined under Section 2(e) would not be this Court and therefore an arbitration request under Section 11(6) would not be maintainable before this Court. Arb.No.18/19 12 In view of the specific wording contained in Clause 47, I am of the opinion that the contention that only the venue of the arbitration is provided in the agreement and that since a writ petition is maintainable before this Court, the arbitration request would also have to be considered by this Court is a fallacious contention. A clause in Annexure A with regard to jurisdiction may not be competent to oust the jurisdiction of this Court under Article 226 of the Constitution of India. However, while considering the aspect of jurisdiction to entertain an arbitration request under Section 11( 6) on the basis of Annexure A, this Court has undoubtedly to consider the issue of competency of the court with specific reference to Section 2 (e) of the Act. In view of the jurisdiction clause contained in Annexure A, I am of the opinion that the very contention of the that an arbitration request is maintainable before this Court is an unsustainable one. The arbitration request, therefore, fails. The same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF RESPONDENT NO.1 AS AMENDED UP TO JANUARY 2013.** **ANNEXURE B TRUE COPY OF THE NOTICE DATED 18.9.2018 ISSUED BY RESPONDENT NO.1 ANNEXURE C TRUE COPY OF THE PROCEEDINGS/ORDER DATED 30.9.2018 ISSUED BY RESPONDENT NO.1 ANNEXURE D TRUE COPY OF THE BYE LAW OF THE APPLICATION ASSOCIATION. ANNEXURE E TRUE COPY OF THE JUDGMENT DATED 29.11.2018 IN WPC NO. 32448 OF 2018. ANNEXURE F TRUE COPY OF THE JUDGMENT DATED 29.11.2018 IN W.A. NO. 2387 OF 2018. ANNEXURE G TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF RESPONDENT NO. 1 AS AMENDED UP TO SEPTEMBER 2018.** **ANNEXURE H TRUE COPY OF THE NOTICE DATED 17.2.2019 ALONG WITH THE POSTAL RECEIPTS. ANNEXURE I TRUE COPY OF THE LETTER DATED 28.2.2019 ISSUED BY RESPONDENT NO.1** True copy PS to Judge