High Court of KeralaSingle Judge2025-02-20Arbitration Request allowed; Sole Arbitrator ap...

Leo Davis v. Ajith E.V., Krishna Prasad, Jiji Johnson, Shiji W/O Jince Joseph, Shibu P.D.

Case / Petition Number:AR NO.225/2024

Neutral Citation:2025:KER:15394

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Syam Kumar V.M.
Judgment Date: 2025-02-20
Court Decision / Holding: AR 225/2024 is allowed; Sri. T.P. Saju, Advocate, is nominated as the sole Arbitrator to resolve disputes under Annexures A1–A5. The Arbitrator may entertain all disputes, including questions of jurisdiction and limitation. The Registry shall communicate the order and obtain a Disclosure Statement from the Arbitrator under Section 11(8) read with Section 12(1). On receipt, a certified copy of the order with the Disclosure Statement shall be issued to the Arbitrator; the fee shall be governed by the Fourth Schedule of the Act.
Final Disposition: Arbitration Request allowed; Sole Arbitrator appointed (Sri. T.P. Saju) to resolve disputes under Annexures A1–A5; Arbitrator may decide on jurisdiction and limitation; Registry to transmit order and obtain Disclosure Statement; Fourth Schedule governs Arbitrator’s fees.

Parties to the Case

Appellants / Petitioners

Leo Davis

Respondents

Ajith E.V.
Krishna Prasad
Jiji Johnson
Shiji W/O Jince Joseph
Shibu P.D.

Legal Representation & Advocates

Counsels for Petitioners

• Anoop Joseph
• Zerene Linda Mitchel
• Aswani Thuvakkadan
• Liya Jose

Counsels for Respondents

• Anjana Kannath
• Mariya Jose
• Sasith M R

Case Synopsis & Summary

Leo Davis, the Managing Director of Leo Davis Overseas Education Consultancy Services Pvt. Ltd., filed AR 225/2024 under Section 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of an arbitrator to resolve disputes arising under five memoranda of understanding (MOUs) with respondents Ajith E.V., Krishna Prasad, Jiji Johnson, Shiji W/O Jince Joseph and Shibu P.D. The MOUs include an arbitration clause stating that any dispute or difference arising out of or relating to the construction, meaning, scope, operation, or effect of the contract or its validity or breach shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration, and the award shall be binding on the parties. Disputes under Annexures A1–A5 have surfaced as the petitioner asserts that despite partial repayments, differences persist; the respondents initially resisted arbitration but later acknowledged the arbitration clause, expressing willingness for an independent and neutral arbitrator appointed by the Court under Section 12(5). The Court held that the essential elements of an arbitration agreement are satisfied (presence of a dispute, intention to settle by a private tribunal, written agreement, and ad idem) and cited Babanrao Rajaram Pund v. Samarth Builders & Developers (2022) 9 SCC 691. Therefore, the AR was allowed and Sri. T.P. Saju was nominated as the sole arbitrator, with power to decide jurisdiction and limitation, disclosure requirements, and Fourth Schedule-related fees.

Provisions of Law Cited

Arbitration and Conciliation Act, 1996 - Section 11Arbitration and Conciliation Act, 1996 - Section 12(5)Arbitration and Conciliation Act, 1996 - Section 11(8)Arbitration and Conciliation Act, 1996 - Section 12(1)Arbitration and Conciliation Act, 1996 - Fourth Schedule

Legal Doctrines & Maxims

ad idem
Independence and neutrality of arbitrator
Unilateral appointment of an Arbitrator is impermissible

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Annexures A1–A5 contain a written arbitration clause mandating arbitration under the Rules of Arbitration of the Indian Council of Arbitration. The disputes are real and existing under the MOUs; the respondents have acknowledged the arbitration clause and desire a neutral, independent arbitrator appointed by the Court under Section 12(5). Section 11 empowers the Court to appoint an arbitrator, and the panel-based selection from Thrissur is sought for convenience. The court’s role is to ensure a valid arbitration agreement, appropriate process, and neutrality, with jurisdiction and limitation issues reserved for the arbitrator.

Contentions of Respondents

The respondents acknowledge the arbitration clause and express willingness to arbitrate but insist on a neutral, independent arbitrator appointed by the Court. They request appointment from the Court’s panel of arbitrators and highlight the need for due process and neutrality, while not opposing the invocation of arbitration itself. 3rd respondent had no appearance.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Babanrao Rajaram Pund v. Samarth Builders & Developers and another	[(2022) 9 SCC 691]	Positive	Cited to support the essential elements required to constitute an arbitration agreement (presence of a dispute, intention to settle by private tribunal, written agreement, and ad idem).
Trf Ltd. v. Energo Engineering Projects	(2017 KHC 4463)	Positive	Cited as a proposition that unilateral appointment of an Arbitrator is not permissible; reinforces need for Court-appointed neutral arbitrator.
Perkins Eastman Architects DPC and another v. HSCC (India) Ltd.	(2019 KHC 7173)	Positive	Cited to support the principle that arbitration requires a neutral and independent arbitrator and proper invocation under the Act.
Central Organisation for Railway Electrification v. M/s ECI SPIC SMO MCML (JV)	(2024 KHC OnLine 6620)	Positive	Cited as authority for the Court’s involvement in appointing a neutral arbitrator and addressing arbitrability.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**AR NO.225/2024** 1 2025:KER:15394 **==> picture [58 x 57] intentionally omitted <==** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **THURSDAY, THE 20[TH] DAY OF FEBRUARY 2025/1ST PHALGUNA, 1946** **AR NO. 225 OF 2024** ## **PETITIONER:** **LEO DAVIS AGED 49 YEARS S/O.DEVASSY MANAGING DIRECTOR, LEO DAVIS OVERSEAS EDUCATION CONSULTANCY SERVICES PVT. LTD, 3RD FLOOR, CROWN TOWERS THRISSUR, PIN - 680006** **BY ADVS. ANOOP JOSEPH ZERENE LINDA MITCHEL ASWANI THUVVAKKADAN LIYA JOSE** ## **RESPONDENTS:** |**1**|**AJITH E.V.**| |---|---| ||**S/O.VISWAMBARAN,ELUVANGEL HOUSE, ANAKUZHI,**| ||**PUTHOOR P.O., KAINOOR,THRISSUR, PIN - 680014**| |**2**|**KRISHNA PRASAD**| ||**S/O.RAVINDRAN, EDATHARA KURIYADATH HOUSE,**| ||**PERAMANGALAM P.O., PERAMANGALAM,**| ||**THRISSUR, PIN - 680545**| |**3**|**JIJI JOHNSON**| ||**W/O.JOHNSON V.J., VALANCHERY HOUSE,**| ||**NADUVATTAM P.O., KALADY,**| ||**ERNAKULAM, PIN - 683574**| **AR NO.225/2024** 2 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:15394 **4 SHIJI W/O.JINCE JOSEPH, VELIYANIRAPPEL HOUSE, NOOLUVELLY EAST, CHEMBUCHIRA P.O., MATTATHUR, THRISSUR, PIN - 680684** **5 SHIBU P.D. S/O.DEVASSY P.V, PADINJAREPEEDIKA HOUSE, MUPLIYAM,MUKUNDAPURAM, THRISSUR, PIN - 680312** **BY ADVS. ANJANA KANNATH, R1 & R2 MARIYA JOSE(K/004011/2023), R1 & R2 SASITH M R, R4 & R5** **THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON** **20.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AR NO.225/2024** 3 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:15394 ## **O R D E R** _Dated this the 20[th] day of February, 2025_ Petitioner has filed this Arbitration Request invoking Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) seeking to appoint an Arbitrator to resolve the disputes that have arisen between the petitioner and the respondents. 2. Petitioner is the Managing Director of a Private Limited Company engaged in educational consultancy services. Respondents 1 to 5 are individuals who have entered into separate memorandums of understanding with the petitioner Company. Respondents 1 to 5 have entered into Annexures A1 to A5 memorandums of understanding respectively with the petitioner Company. The respondents have made distinct and separate investments of various amounts in the petitioner Company. Annexures A1 to A5 contain an arbitration clause, which reads as follows: “ _Any dispute or difference whatsoever arising_ **AR NO.225/2024** 4 **==> picture [58 x 57] intentionally omitted <==** ## 2025:KER:15394 _between the parties out of or relating to the construction, meaning, scope, operation, or effect of this contract or its validity or breach shall be settled by arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration, and the award made in pursuance thereof shall be binding on the parties.”_ Disputes have cropped up between the petitioner and the respondents under the respective memorandums of understanding and the petitioner claims that though certain amounts have been returned to the respondents differences persisted and to resolve the same, the petitioner had requested referring the dispute to the arbitration as stipulated in the memorandums of understanding. The respondents are reluctant to accept the said request to arbitrate and hence the petitioner has filed this Arbitration Request invoking Section 11 of the Act. 3. Notice was issued in the Arbitration Request and was served on all the respondents. 4. Heard Sri.Anoop Joseph, Advocate for petitioner, Smt.Anjana Kannath, Advocate for respondents 1 and 2, and Sri.M.R.Sasith, Advocate for respondents 4 and 5. There was no **AR NO.225/2024** 5 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:15394 ## appearance for the 3rd respondent. 5. The relevant clause in Annexures A1 to A5 reproduced herein above, specifically stipulates a dispute resolution through arbitration. The pleadings and the submission made by the counsel reveal the existence of disputes between the parties under Annexures A1 to A5. The invocation of the relevant arbitration clause as claimed by the petitioner has not been denied or disputed by the respondents. The counsel for the respondents concur that the arbitration clause had been invoked and that their clients are amenable to a resolution of the disputes by arbitration. However, the arbitration has to be by an independent and neutral Arbitrator as envisaged in Section 12 (5) of the Act as appointed by this Court. It is also prayed that for the convenience of parties, who are based in Thrissur District, a lawyer from the panel of Arbitrators maintained by this Court, who is based in Thrissur, may be appointed. 6. 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 **AR NO.225/2024** 6 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:15394 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 also admitted. If there is any challenge regarding jurisdiction/arbitrability/maintainability and limitation, it is trite that the parties can raise the same before the Arbitrator who can decide the said questions in the arbitration proceedings. 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 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)]. 7. The existence of an arbitration agreement, its due invocation and the cause of action not being barred by limitation have been validly made out. Hence I deem it fit and appropriate to **AR NO.225/2024** 7 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:15394 allow the Arbitration Request and to appoint an Advocate from the panel of Arbitrators maintained by this Court as the Arbitrator. Accordingly, this Arbitration Request stands allowed and it is ordered as follows : (i) Sri.T.P. Saju, Advocate, Nambanath Swathi Building, Ayyanthole, Thrissur - 680 003 is nominated as the sole Arbitrator to resolve the disputes that have arisen between the petitioner and the respondents under Annexures A1 to A5 memorandums of understanding. (ii) The learned Arbitrator may entertain all disputes/ issues between the parties in connection with the said agreement, including questions of jurisdiction 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 Statement of Disclosure from the learned Arbitrator as stipulated under Section 11(8) read with Section 12(1) of the Act. **AR NO.225/2024** 8 **==> picture [58 x 57] intentionally omitted <==** 2025:KER:15394 (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.225/2024** 9 **==> picture [58 x 57] intentionally omitted <==** ## 2025:KER:15394 ## **APPENDIX OF AR 225/2024** ## **PETITIONER'S ANNEXURES** |**Annexure A1**|**A TRUE COPY OF THE MEMORANDUM OF**| |---|---| ||**UNDERSTANDING DATED 11.10.2023 EXECUTED**| ||**BETWEEN THE PETITIONER AND THE FIRST**| ||**RESPONDENT**| |**Annexure A2**|**A TRUE COPY OF THE MEMORANDUM OF**| ||**UNDERSTANDING DATED 12.12.2022 EXECUTED**| ||**BETWEEN THE PETITIONER AND THE 2ND**| ||**RESPONDENT**| |**Annexure A3**|**A TRUE COPY OF THE MEMORANDUM OF**| ||**UNDERSTANDING DATED 16.12.2023 EXECUTED**| ||**BETWEEN THE PETITIONER AND THE 3RD**| ||**RESPONDENT**| |**Annexure A4**|**A TRUE COPY OF THE MEMORANDUM OF**| ||**UNDERSTANDING DATED 09.09.2023 EXECUTED**| ||**BETWEEN THE PETITIONER AND THE 4TH**| ||**RESPONDENT**| |**Annexure A5**|**A TRUE COPY OF THE MEMORANDUM OF**| ||**UNDERSTANDING DATED 24.07.2023 EXECUTED**| ||**BETWEEN THE PETITIONER AND THE 5TH**| ||**RESPONDENT**|