Laxmi J. Pai v. K.G. Satheesh Chandrababu and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939** ## **AR.No. 44 of 2016 ()** **---------------------** **PETITIONER :** - **------------------** **LAXMI J. PAI AGED 40 YEARS, W/O K.V.JANARDHANA PAI, RESIDING AT YASORAM OJUS APARTMENT, MULLASSERY CANAL ROAD, ERNAKULAM, KOCHI-682031.** **BY ADVS.SRI.A.BALAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SRI.M.N.MANMADAN SRI.A.RAJAGOPALAN SMT.P.SEENA SRI.RAJU JOSEPH (SR.)** **RESPONDENTS :** **-----------------------** **1. K.G. SATHEESH CHANDRABABU AGED ABOUT 70 YEARS, S/O K.N.GOVINDA PAI, KANG BROTHERS, NEAR IRON BRIDGE, ALAPPUZHA.** **2. SRI. K.G.SANJAYAN AGED ABOUT 62 YEARS, S/O K.N.GOVINDA PAI, KNG BROTHERS, BEHIND DEVI TEMPLE, CHERTHALA-688524.** **3. SRI. K.G.SUDHEERJI PAI AGED ABOUT 60 YEARS, S/O K.N.GOVINDA PAI, KNG BROTHERS, BEHIND DEVI TEMPLE, CHERTHALA-688524.** **4. SRI. K.G.NARAYANA PAI AGED ABOUT 72 YEARS, S/O K.N.GOVINDA PAI, KNG TEXTILES HOUSE, NETHAJI ROAD, PADIVATTOM, KOCHI-682024.** ## **AR.No. 44 of 2016 ()** ## **----------------------------** **5. SMT. REKHA N. PAI, AGED ABOUT 60 UEARS. W/O K.G.NARAYANA PAI, KNG TEXTILES HOUSE, NETHAJI ROAD, PADIVATTOM, KOCHI-682024.** **6. SMT. SUDHA S. PAI, AGED ABOUT 61 YEARS, W/O K.G.SATHEESH CHANDRABABU, KNG BROETHERS, NEAR IRON BRIDGE, ALAPPUZHA.** **7. SMT. P.R.REMADEVI AGED ABOUT 60 YEARS, W/O. LATE SUNDHERSH G. PAI, KNG FABRICS, NADAKKAVU ROAD, CHERTHALA.** **8. SMT. PRANITHA S. PAI, AGED ABOUT 58 YEARS, W/O K.G.SUDHEERJI PAI, PAIS TEXTILES, BEHIND DEVI TEMPLE, CHERTHALA-688524.** **9. SMT. UMA S. PAI AGED ABOUT 62 YEARS, W/O. K.G.SANJAYAN, KNG SONS, BEHIND DEVI TEMPLE, CHERTHALA-688524.** **10. SRI. ANIL S. PAI AGED ABOUT 30 YEARS, S/O K.G.SATHEESH CHANDRABABU, KNG BROTHERS, NEAR IRON BRIDGE, ALAPPUZHA.** **11. SWAPNA S. PAI ALIAS SANDHYA AGED ABOUT 31 YEARS, D/O LATE K. SUNDHERSH G. PAI, KNG FABRICS, NADAKKAVU ROAD, CHERTHALA-688524.** **12. SUNIL S. DAMODAR AGED ABOUT 29 YEARS, S/O. LATE K. SUNDHERSH G. PAI, KNG FABRICS, NADAKKAVU ROAD, CHERTHALA-688524.** **13. VARNA S. PAI AGED ABOUT 25 YEARS, D/O LATE K. SUNDHERSH G. PAI, KNG FABRICS, NADAKKAVU ROAD, CHERTHALA-688525. R1 TO R3 TO R8,R9,R10 TO R13 BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL** **THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 18-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **AR.No. 44 of 2016 ()** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **----------------------------------------** - **ANNEXURE A1: COPY OF PARTNERSHIP DEED DT 01/04/2005 OF PAI'S TEXTILES, CHERTHALA.** - **ANNEXURE A2: COPY OF PARTNERSHIP DEED DT 4/1/2001 OF KNG SONS, CHERTHALA.** - **ANNEXURE A3: COPY OF PARTNERSHIP DEED DT 01/04/2005 OF GODAWARI GARMENTS, CHERTHALA.** - **ANNEXURE A4: COPY OF THE DEED OF RETIREMENT DT 31/3/2007 EXECUTED BETWEEN THE PARTNERS OF M/S. PAIS TEXTILES.** - **ANNEXURE A5: COPY OF THE DEED OF RETIREMENT DT 31/3/2007 EXECUTED BETWEEN THE PARTNERS OF M/S. KNG SONS.** - **ANNEXURE A6: COPY OF THE DEED OF RETIREMENT DT 31/3/2007 EXECUTED BETWEEN THE PARTNERS OF M/S. GODAWARI GARMENTS.** - **ANNEXURE A7: COPY OF THE DEED OF RETIREMENT DT 31/3/2007 EXECUTED BETWEEN THE PARTNERS OF M/S. KNG TEXTILES, ERNAKULAM.** - **ANNEXURE A8: COPY OF THE AUDITED STATEMENT OF ACCOUNTS OF THE THREE FIRMS.** - **ANNEXURE A9: COPY OF THE LAWYER NOTICE DT 4/7/2012.** - **ANNEXURE A10 TO A18: COPIES OF THE ACKNOWLEDGMENT CARD SHOWING RECEIPT OF ANNEXURE A4 LAWYER NOTICE BY RESPONDENTS 1,3,4,5 TO 8 AND 10.** - **ANNEXURE A19 & 20 : COVERS CONTAINING THE NOTICE ISSUED TO RESPONDENTS 2 AND 9 RETUNED WITH AN ENDORSEMENT “LEFT INDIA”** **ANNEXURE A21: COPY OF THE REPLY NOTICE DT 20/7/2012 ISSUED BY THE COUNSEL FOR THE RESPONDENTS TO THE PETITIONERS COUNSEL.** **RESPONDENT'S ANNEXURES :** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **A.R. No.44 of 2016 ----------------------------------------------Dated this the 18[th] day of September, 2017** ## **O R D E R** Petitioner is the legal heir of one late Padmaja. Padmaja died on 6.1.2015. Prior to her death, she executed a registered Will bearing No.99/2008 of SRO, Ernakulam dated 25.2.2007 bequeathing amounts due to her from the partnership firm and the share of good will, in favour of the petitioner. On the death of Padmaja aforesaid Will came into force. However, dispute arose by and between the parties and thus seeking to appoint an Arbitrator to resolve the disputes as contemplated under the respective agreements. 2. Relevant facts are as follows; late Padmaja and respondents were partners of three partnership firms by name KNG Textiles, Pais Textiles and M/s.Godavari Garments. The said firms were constituted as per Annexures A1 to A3 partnership deeds. Clause 19 of Annexures A1 to A3 partnership deeds stipulates that, any dispute that may arise among the partners or their legal A.R. No.44/2016 2 heirs with respect to the affairs of the partnership deeds, it shall be settled through arbitration. Late Padmaja retired from the aforesaid partnership firms w.e.f. 31.3.2007, evident from Annexures A4 to A6 retirement deeds. Respondents 6 to 8 were partners of M/s. KNG Textiles, Ernakulam. They also retired from the KNG Textiles w.e.f. 31.3.2007, evident from Annexure A7. Annexures A4 to A7 retirement deeds form part of Annexures A1 to A3 partnership deeds and the rights enjoyed by the partners as per Annexures A1 to A3 partnership deeds are taken care of in Annexures A4 to A7 retirement deeds. Annexures A4 to A7 retirement deeds provide for payment to be made to the retiring partners or by retiring partners to the firm on the basis of audited accounts as on 31.3.2007. 3. As per Annexure A8, the audited account statement, respondents altogether have to pay an amount of Rs.2,88,73,347.13 to late Padmaja. However, respondents did not pay the same and are disputing their liability to make A.R. No.44/2016 3 the said payment. Therefore, the dispute arising between the petitioner and the respondents is in respect of the payments in connection with retirement of late Padmaja from the aforesaid three partnership firms. Accordingly late Padmaja issued Annexure A9 lawyer notice dated 4.7.2012 intimating her choice of Arbitrator for settling the dispute. Respondents 1, 3, 4, 5 and 10 & 11 received Annexure A9 lawyer notice, evident from Annexure A10 to A18 acknowledgment cards. The notice issued to respondents 2 and 9 were returned with an endorsement “left India”. Respondents 1, 3, 4 and 5 to 8 and 10 & 11 issued Annexure A21 reply dated 20.7.2012 disputing the claims and demands raised by the petitioner. They also did not agree for the choice of Arbitrator mentioned in Annexure A9 notice issued on behalf of the predecessor-in-interest of the petitioner. Therefore, according to the petitioner, petitioner has no other alternative than to approach this court seeking to appoint the Arbitrator as provided under Section 11 of the A.R. No.44/2016 4 Arbitration and Conciliation Act, 1996. 4. Notice is served on all the respondents. However, 3[rd] respondent alone has cared to file objection disputing the claims and demands raised by the petitioner. It is stated thereunder that, Annexure A4 is a deed of retirement pertaining to the firm, Pais Textiles, Cherthala. Annexure A7 is the deed of retirement pertaining to KNG Textiles, Ernakulam. Late Padmaja was a partner in the firm, Pais Textiles, Cherthala, but was not a partner in the firm KNG Textiles, Ernakulam. There is no arbitration agreement by and between late Padmaja and the respondents in the matter of KNG Textiles, Ernakulam. In the absence of such an agreement the relief for appointment of Arbitrator to decide the issue arising out of Annexure A7 is not maintainable. In Annexure A7 Padmaja has not affixed her signature and therefore, petitioner is not entitled to make any claim with respect to the partnership relating to Annexure A7 deed of retirement. It is also submitted that, the deed of partnership A.R. No.44/2016 5 regarding Pais Textiles is Annexure A1 dated 1.4.2005. Late Padmaja decided to retire from Pais Textiles w.e.f. 31.3.2007. Accordingly a deed of retirement of partnership of, M/s.Pais Textiles, Cherthala was executed on 31.3.2007 and it is a deed independent and distinct governing the rights of the parties, evident from Annexure A4. Annexure A4 is not a continuation of Annexure A1. There is no intention expressed or implied to incorporate the terms in Annexures A1 to A4. Annexure A4 is enforceable specifically. There, the rights and liabilities of the retiring partners are determined on the strength of Annexure A4. In Annexure A4 the parties thereto specifically desisted from incorporating an arbitration clause. The parties thereto having not incorporated an arbitration clause, the relief for appointment of an Arbitrator to decide the alleged disputes on the strength of Annexure A4 is not sustainable. It is further submitted that, going by the averments in the request the alleged claim put forth by the petitioner is hopelessly barred A.R. No.44/2016 6 by the law of limitation. The averments made in paragraphs 4, 5 and 8 of the request would clearly show that, the claim is barred by limitation. According to the 3[rd] respondent, as per Annexure A4 retirement deed, the retiring partners is to be paid dues from the firm within six months time. Annexure A4 is dated 31.3.2007. According to the 3[rd] respondent, the said period expired on 1.10.2007. The notice seeking appointment of Arbitrator, Annexure A9 is dated 4.7.2012. The reply to Annexure A9 was dated 20.7.2012 in which it is categorically stated that, Annexure A9 claim is barred by limitation. 5. The sum and substance of the contention advanced by the 3[rd] respondent is that, considering the issue of limitation taking into account sections 21 and 24 of the Arbitration and Conciliation Act, 1996, the claim raised by the petitioner is barred as on the date of Annexure A9 notice dated 4.7.2012. Therefore, the claim raised by the petitioner seeking to appoint the Arbitrator is a futile exercise since the A.R. No.44/2016 7 limitation of the claim raised is clearly discernible from the facts and circumstances of the case. 6. Heard learned senior counsel for the petitioner, Sri.Raju Joseph learned counsel appearing for the 3[rd] respondent, Sri.Vinod Bhat, and perused the pleadings and the documents on record. 7. It is an admitted fact that, whenever there is a dispute arising by and between the parties, the same will have to be resolved by resorting to clause 19 of Annexures A1 to A3 partnership deeds, which read thus: “Any dispute which may arise between the partners or their legal heirs about interpretation of this deed or their rights and liabilities hereunder or in relation to other matters whatsoever relating to the partnership affairs shall be settled by arbitration as provided for in the Indian Arbitration Act for the time being in force.” 8. Therefore, it is clearly evident that, whenever there is a dispute by and between the parties or their legal heirs about interpretation of the the partnership deed and with A.R. No.44/2016 8 respect to their rights and liabilities thereunder or in relation to other matters whatsoever relating to the partnership affairs shall be settled by arbitration as provided by the Indian Arbitration Act for the time being. Therefore, the arbitrability of the dispute raised by the petitioner cannot be doubted in any manner. However, the 3[rd] respondent has raised a question of limitation in respect of Annexure A4 retirement deed executed by and between the partners on 31.3.2007. Clause 3 contained thereunder is relevant which read thus: “3. In respect of the retiring partners a general account shall be prepared of the amount standing to their credit in the firm as on 31[st] March, 2007 made up of their capital contribution, undrawn share of profit including profit or loss for the period ended 31[st] March, 2007 and any other amounts brought in by them deducting therefrom the drawings and other payments made on their account and the resultant balance shall be paid to the retiring partners by the firm within a period of six months from this date A.R. No.44/2016 9 or such other date as may be mutually agreed hereafter in full and final settlement of all their interest in the business and the assets and liabilities of the firm and the said amount shall stand charged on the business now taken over by the continuing partners.” 9. It is evident from Clause 3 that, whatever dues that becomes payable to the retiring partners by the firm shall be paid within a period of six months from the date of Annexure A4 deed. The contention advanced by learned counsel for the 3[rd] respondent is that, six months period has expired on 1.10.2007 and going by Section 43 of the Arbitration and Conciliation Act, Limitation Act applies and so far as the money claim is concerned, only a period of 3 years is available to the petitioner to raise a claim. Therefore, calculating the period from 1.10.2007 to the date of issuance of Annexure A9 notice dated 4.7.2012 and the reply dated 20.7.2012, the claim is raised after a period of 5 years from the date prescribed as per clause 3 of Annexure A4 specified above. Learned counsel has invited my attention to the A.R. No.44/2016 10 judgment of the Apex Court in **State of Goa v. Praveen Enterprises** [AIR 2011 SC 3814] and specifically to paragraph 13 to 15 and 28 and 29 which read thus: “Sections 21 and 43 of the Act 13. Section 21 provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commences on the date on which a request for that dispute to be referred to arbitration is received by the respondent.Taking a cue from the said section, the respondent submitted that arbitral proceedings can commence only in regard to a dispute in respect of which notice has been served by a claimant upon the other party, requesting such dispute to be referred to arbitration; and therefore, a counterclaim can be entertained by the arbitrator only if it has been referred to him, after a notice seeking arbitration in regard to such counter-claim. On a careful consideration we find no basis for such a contention. The purpose of section 21 is to specify,in the absence of a provision in the arbitration agreement A.R. No.44/2016 11 in that behalf, as to when an arbitral proceedings in regard to a dispute commences. This becomes relevant for the purpose of section 43 of the Act. Sub-section (1) of section 43 provides that the Limitation Act, 1963 shall apply to arbitrations as it applies to proceedings in courts. Sub-section (2) of section 43 provides that for the purposes of section 43 and the Limitation Act, 1963, an arbitration shall be deemed to have commenced on the date referred to in section 21 of the Act. Having regard to section 43 of the Act, any claim made beyond the period of limitation prescribed by the Limitation Act, 1963 will be barred by limitation and the arbitral tribunal will have to reject such claims as barred by limitation. 14. Section 3 of the Limitation Act, 1963 provides for bar of limitation and is extracted below: "3. Bar of Limitation - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed A.R. No.44/2016 12 although limitation has not been set up as a defence. (2) For the purposes of this Act,- (a) a suit is instituted,- (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set-off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted - (i) in the case of a set-off, on the same date as the suit in which the set-off is pleaded; (ii) in the case of a counter-claim, on the date on which the counter-claim is made in court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court." (Emphasis supplied) 15. In regard to a claim which is sought A.R. No.44/2016 13 to be enforced by filing a civil suit, the question whether the suit is within the period of limitation is decided with reference to the date of institution of the suit, that is, the date of presentation of a plaint. As Limitation Act, 1963 is made applicable to arbitrations, there is a need to specify the date on which the arbitration is deemed to be instituted or commenced as that will decide whether the proceedings are barred by limitation or not. Section 3 of Limitation Act, 1963 specifies the date of institution for suit, but does not specify the date of 'institution' for arbitration proceedings. Section 21 of the Act supplies the omission. But for section 21, there would be considerable confusion as to what would be the date of 'institution' in regard to the arbitration proceedings. It will be possible for the respondent in an arbitration to argue that the limitation has to be calculated as on the date on which statement of claim was filed, or the date on which the arbitrator entered upon the reference, or the date on which the arbitrator was appointed by the A.R. No.44/2016 14 court, or the date on which the application was filed under section 11 of the Act. In view of section 21 of the Act providing that the arbitration proceedings shall be deemed to commence on the date on which "the request for that dispute to be referred to arbitration is received by the respondent" the said confusion is cleared. Therefore, the purpose of section 21 of the Act is to determine the date of commencement of the arbitration proceedings, relevant mainly for deciding whether the claims of the claimant are barred by limitation or not. 28. The aforesaid contention of the respondent is based on the erroneous premises that whenever an application is filed under section 11 of the Act, it is necessary for the Chief Justice or his designate to consider and decide whether the claims or counter-claims are barred by limitation or not. In SBP and Co. and Boghara Polyfab, this Court classified the questions that may be raised in an application under section 11 of the Act into three groups : (i) those A.R. No.44/2016 15 which the Chief Justice/his designate shall have to decide; (ii) those which the Chief Justice/his designate may choose to decide or alternatively leave to the decision of the Arbitral Tribunal; and (iii) those which the Chief Justice/his designate should leave exclusively for the decision of the Arbitral Tribunal. This Court held that the issue whether a claim is dead claim (long barred claim) is an issue which the Chief Justice or his designate may choose to decide or leave for the decision of the Arbitral Tribunal. The difference between a dead/stale claim and a mere time-barred claim was explained by this Court in Indian Oil Corporation Ltd. v. M/s. SPS Engineering Ltd. [2011 (2) SCALE 291 : (AIR 2011 SC 987)] thus : - "When it is said that the Chief Justice or his designate may choose to decide whether the claim is a dead claim, it is implied that he will do so only when the claim is evidently and patently a long time-barred claim and there is no need for any detailed consideration of evidence. We may elucidate by an A.R. No.44/2016 16 illustration: If the contractor makes a claim a decade or so after completion of the work without referring to any acknowledgment of a liability or other factors that kept the claim alive in law, and the claim is patently long timebarred, the Chief Justice or his designate will examine whether the claim is a dead claim (that is, a long time-barred claim). On the other hand, if the contractor makes a claim for payment, beyond three years of completing of the work but say within five years of completion of work, and alleges that the final bill was drawn up and payments were made within three years before the claim, the court will not enter into a disputed question whether the claim was barred by limitation or not. The court will leave the matter to the decision of the Tribunal. If the distinction between apparent and obvious dead claims, and claims involving disputed issues of limitation is not kept in view, the Chief Justice or his designate will end up deciding the question of limitation in all applications under Section 11 of the A.R. No.44/2016 17 ## Act." 29. The issue of limitation is not an issue that has to be decided in an application under section 11 of the Act. SBP and Co. and Boghara Polyfab held that the Chief Justice or his designate will not examine issues relating to limitation, but may consider in appropriate cases, whether the application was in regard to a claim which on the face of it was so hopelessly barred by time, that it is already a dead/stale claim which did not deserve to be resurrected and referred to arbitration. The said decisions do not support the respondent's contention that the details of all claims should be set out in the application under section 11 of the Act and that details of all counterclaims should be set out in the statement of objections, and that a claim or a counter-claim which is not referred to or set out in the pleadings in the proceedings under section 11 of the Act, cannot be entertained or decided by the arbitral tribunal.” 9. The thrust of the contention advanced by learned A.R. No.44/2016 18 counsel for the 3[rd] respondent is that, when it is clearly discernible from the covenants contained in Annexure A4 read with Annexure A9 demand made and Annexure A21 reply, that the claim raised by the petitioner is barred under the law of limitation and it need not be referred for arbitration. 10. However, per contra learned senior counsel for petitioner submitted that, the issue in respect of the dispute is by and among the family members, partners in various partnership firms. The issue with respect to Annexures A5 & A6 etc. etc. are already referred for arbitration and the subject matter is under adjudication before an Arbitrator. Since the issues liable to be resolved are among the partners, who are family members, distinct interpretation of limitation cannot be provided as is held by the Apex Court in the judgment in **Hari Shankar Singhania & Ors. v. Gaur Hari Singhani & Ors.** [(2006) 4 SCC 658] and held in paragraph 59, as follows: A.R. No.44/2016 19 59. In the instant case, the partnership firm was dissolved w.e.f. March 1987 with consent of the parties. The deed of dissolution was also entered into between the parties on 26-3-1987. In 1988, the three groups each appointed a nominee to work out an arrangement whereby the distribution of the properties of the dissolved firm could be made and effected. The nominees held several meetings but no agreement of distribution could be arrived at. Meeting of the partners took place on various occasions in regard to the issue of distribution of assets which has been considerably delayed. Several correspondences exchanged between the heads of three branches regarding amicable distribution of all the immovable properties in specie. It is stated that 14 properties are situated in Kanpur and 1 property in Bombay which are very valuable. Respondents 1-9 being in enjoyment were simply delaying distribution in specie. In the circumstances, Appellant 1 herein and the other members of the branch of A.R. No.44/2016 20 Lakshmipat Singhania wanted to take recourse to due process of law for getting distribution and allotment in specie of their one-third share in those 15 immovable properties. Hence, application under Section 20 of the Arbitration Act, 1940 was filed in the High Court of Bombay on 8-5-1992. Other group opposed the application on the ground of limitation and the lack of jurisdiction. The Single Judge rejected the plea of the lack of jurisdiction but upheld the plea of limitation on the basis that disputes and differences arose on 18-3-1989 whereas the application was filed on 8-5-1992 i.e. to say 50 days beyond the period of 3 years. The Division Bench also dismissed the appeal filed by the appellant on the ground of limitation.” 11. Learned Senior Counsel canvassed for the proposition that, the subject matter of limitation therefore is to be resolved by the Arbitrator taking into account various aspects including whether there is any subsequent extension of date from the date prescribed in clause 3 of Annexure A4 A.R. No.44/2016 21 and attain a finality to the said issue and at this point of time, this court while considering the request may not decide on the said issue. Learned Senior Counsel has also invited my attention to the judgment of the Apex Court in **Wexford Financial INC,Panama v. Bharat Heavy Electricals Limited** [(2016) 8 SCC 267], wherein also the Apex Court held that, the question whether the claim made by the petitioner is time barred cannot be examined in the present proceedings and shall have to be left open to be raised before the Arbitrator. 12. Yet another contention advanced by the learned counsel for 3[rd] respondent is that, in Annexure A7, late Padmaja is not a party. In the corresponding partnership deed also, Padmaja was not a party. The partnership deed corresponding to Annexure A7 is not produced before this court. It also discernible from Annexure A7 that, late Padmaja was not a party to the said retirement deed. Therefore, without any shadow of doubt, it can be seen that, A.R. No.44/2016 22 petitioner is not entitled to get any reference on arbitration on the basis of Annexure A7 since the predecessor-in-interest of the property was not a party to the said deed. Third respondent has also a further contention that, Annexures A4 to A7 retirement deeds are independent of Annexures A1 to A3 partnership deeds and therefore, the clause contained in the partnership deed cannot be imported to canvass the proposition that, the disputes by and between the parties as per the retirement deeds can be resolved by resorting to arbitration, since there is no clause contained under the retirement deeds. However, I am of the considered opinion that, the arbitration clause contained under Annexures A1 to A3 partnership deeds clearly shows that, any dispute that may arise by and between the partners or the legal heirs about interpretation of this deed or the rights and liabilities in the partnership “or in relation to other matters whatsoever relating to the partnership firms shall be settled by arbitration”. Therefore, it can be clearly seen that, it is A.R. No.44/2016 23 not only the dispute arisen by and between the parties in the partnership deed, that is entitled to be resolved by resorting to arbitration but any matter in or in relation to partnership as well as other matters whatsoever relating to partnership firms is entitled to be settled by resorting to arbitration. Therefore, the said contention advanced by the learned counsel for 3[rd] respondent cannot be sustained under law. 13. Any how the sole question to be decided is whether the claim raised by the 3[rd] respondent in respect of limitation is to be considered in this proceedings ? As I have pointed out earlier, learned counsel for the 3[rd] respondent relied on the judgment in **Praveen Enterprises** supra with specific reference to sections 21 & 43 of the Arbitration and Conciliation Act which, pave the way to decide a question with respect to limitation. Section 21 of the Arbitration and Conciliation Act read thus: “21.Commencement of arbitral proceedings.- Unless otherwise agreed by the parties, the arbitral proceedings in A.R. No.44/2016 24 respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.” 14. Therefore, on a reading of section 21, it is categoric and clear that, section 21 is a dependent provision, on any agreement, entered into by and between the parties. Which thus also means arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute is made, however subject to any agreement entered into by and between the parties. On a reading of section 21 and along with Annexure A9 notice, one may gather an opinion that, the period of limitation starts from the issuance of Annexure A9 notice, however, a reference to section 43 of Act, 1996 is a necessary corollary to decide the issue which read thus: - “43.Limitations.- The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in court. - (2) The Limitation Act, 1963 (36 of 1963),an arbitration shall be deemed to A.R. No.44/2016 25 have commenced on the date referred in section 21. (3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper. (4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so A.R. No.44/2016 26 ## submitted.” 15. Therefore, it can be seen that, the Limitation Act, 1963 applies to arbitrations as it applies to proceedings in court. On a conjoint reading of sections 21 and 43 of Act, 1996 with covenants contained under Annexure A4 agreement entered into by and between the partners, it is clear that, instead of section 21 Annexure A4 retirement deed will come into play and the limitation is to be calculated from the commencement of the proceedings as prescribed under clause 3 of Annexure A4 agreement. Learned counsel for the 3[rd] respondent contended that, if the limitation is calculated from the expiry of six months as is postulated in clause 3 of Annexure - A4, Annexure - A9 notice of claim issued on 4.7.2012 is after three years. But in my considered opinion, clause 3 has also a rider “either a period of six months from the date of the retirement deed i.e., 31.3.2007 or such other dates as may be mutually agreed hereafter in full and final settlement of their interest in the business and the assets and liabilities of the firm. Therefore, it cannot be A.R. No.44/2016 27 absolutely said that, the limitations starts from the expiry of the six months period prescribed under clause 3 of Annexure A4, as held by the Apex Court in **Hari Shankar** supra, since the subject issue to be resolved are by and between the family members. Many things must have taken place in between the period, which might have caused delay in issuing notice and making the request before this court for appointing an arbitrator. Therefore, in my considered opinion, it may not be proper, wise and legal on the part of this court to conclude the issue with respect to limitation at this stage of the proceedings. So also it is an admitted fact that, in respect of some other firms arbitration is pending by an d between the parties. Therefore, the objection raised by the 3[rd] respondent in that regard seeking to dismiss the request on that ground is declined. Resultantly the arbitration request is allowed and Adv.Sri.K.P.Balasubramanian, Gokulam, IInd Avenue, P.C. Road, Kaloor, Kochi - 17 is appointed as Arbitrator to A.R. No.44/2016 28 resolve the dispute by and between the parties. The Arbitrator may enter on reference and proceed in accordance with law. The petitioner shall produce the disclosure statement from the Arbitrator as provided under section 11(8) of Act, 1996 and the Registry shall issue the certified copy of this order only on production of such statement. The original of the disclosure statement produced by the petitioner shall be retained by the Registry and a copy shall be appended with the certified copy issued. Sd/- **SHAJI P. CHALY JUDGE** smv 20.9.2017