High Court of KeralaSingle JudgeAppeal dismissed; Arbitration not referred; sui...

Pilakkandi Ajmal v. P.P. Sathique and others

Case / Petition Number:Arb.A.No.26 of 2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Shircy V.
Judgment Date
2020-02-25
Court Decision / Holding
In view of the foregoing discussion, there is no error in the Sub Judge’s order denying arbitration. The trial court shall proceed with the suit in accordance with law. The Arb.A. No. 26 of 2019 appeal is dismissed.
Final Disposition
Appeal dismissed; Arbitration not referred; suit to proceed in court.

Parties to the Case

Appellants / Petitioners

  • Pilakkandi Ajmal

Respondents

  • P.P. Sathique
  • P.P. Zakir Hussain
  • P.P. Shamseer
  • P.P. Sithique
  • P.P. Nousheer
  • P.P. Niyas
  • C. Basheer
  • P.P. Shanavas
  • P.P. Rashid Ahmed
  • P.P. Saru
  • P.P. Basheer

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. M. Sasindran
  • • Sri. Sathheeshan Alakkadan

Counsels for Respondents

  • • Sri K. Mohanakannan
  • • Smt. A.R. Pravitha

Case Synopsis & Summary

This Kerala High Court arbitration appeal concerns the second defendant in a partnership dissolution suit challenging an order to refer the dispute to arbitration. Pilakkandi Ajmal (defendant no.2) appeals under Arb.A.No.26 of 2019 against an order in O.S.40/2019 of the Additional Sub Court, Thalassery, which declined to refer the dispute to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996. The plaintiffs, P.P. Sathique, P.P. Zakir Hussain, P.P. Shamseer, and others, filed for dissolution of the partnership firm M/s Pilakkandi Associates and rendition of accounts, and sought a receiver; the appellant sought to enforce the arbitration clause in the partnership deed. The trial court, relying on jurisprudence including Khadeeja T.A. v. R.K. Manjusha, held that such dissolution and account issues should be decided by the court rather than referred to arbitration. The respondents relied on precedents like Baburaj v. Faizal to argue that fraud and serious allegations require civil court determination, while the appellant pressed the arbitration route per clause 14(e) of the partnership deed. The High Court ultimately agrees with the trial court that the dispute, given its complexity and serious allegations of fraud/misappropriation, is non-arbitrable and must be decided in court. The appeal is dismissed; the suit will proceed in accordance with law.

Provisions of Law Cited

Arbitration and Conciliation Act, 1996 - Section 8Partnership Act - Section 46Partnership Act - Section 44

Legal Doctrines & Maxims

  • Cart before the horse (maxim)
  • Non-arbitrability of fraud (doctrine)
  • Fraud and complex accounting disputes to be decided by courts rather than arbitrators (doctrine)
  • Ayyasamy v. A. Paramasivam and Ors. (SC doctrine on non-arbitrability where serious fraud is involved)
  • Zenith Drugs & Allied Agencies Pvt. Ltd. v. M/s. Nicholas Piramal India Ltd. (only disputes agreed to be resolved through arbitration can be referred)
  • Khadeeja T.A. v. R.K. Manjusha (supporting court-led dissolution/accounts where dissolution outcomes are involved)
  • Baburaj v. Faizal (civil court machinery to adjudicate fraud allegations)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that Clause 14(e) of the partnership deed (dated 8-10-2015) requires that any dispute between partners be referred to arbitration. Relying on Section 8 of the Arbitration and Conciliation Act, 1996, they seek reference of the dispute to arbitration, arguing that the suit, instituted for dissolution of the firm and rendition of accounts, is precisely the type of dispute covered by the arbitration clause. They emphasize the desirability of resolving disputes through arbitration as per the agreement and contend that the court should not pre-empt arbitration by opting for judicial dissolution. The clause should govern, notwithstanding alleged fraud, as long as the nature of the dispute allows arbitrability; the parity of procedures and avoidance of unnecessary multiplicity of proceedings supports arbitration. They rely on the fundamental principle that an arbitration clause governs disputes that fall within its scope and that a court should respect the parties’ agreement absent clear non-arbitrability.

Contentions of Respondents

The respondents argue that the suit for dissolution and rendition of accounts cannot be referred to arbitration, as the matter involves serious allegations of fraud and misappropriation by the second defendant. They rely on Khadeeja T.A. v. R.K. Manjusha to contend that dissolution-related issues and accounts often require detailed scrutiny of evidence, which should be conducted by the court rather than an arbitrator. They cite Baburaj v. Faizal to support the proposition that where fraud is alleged, the civil court possesses the proper machinery for adjudication. They further rely on Ayyasamy v. Paramasivam and Ors. to distinguish between fraud that is “serious” and fraud simpliciter, arguing that the latter may sometimes be left to arbitration if merely alleged. They also cite Zenith Drugs & Allied Agencies v. Nicholas Piramal to emphasize that disputes must be those specifically agreed to be resolved by arbitration. In view of these authorities, they contend that the dispute, given its complexity and potential for fraud, is not arbitrable and should be decided by the court.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Khadeeja T.A. v. R.K. Manjusha2018 (2) KHC 298PositiveCited to support that dissolution-related settlements fall under court authority (S.46/S.44) and should not be sent to arbitration.
Baburaj v. Faizal2014 (2) KLT 238PositiveUsed to argue that serious fraud allegations in partnership matters require civil court adjudication.
A. Ayyasamy v. A. Paramasivam and Ors.AIR 2016 SC 4675PositiveCited for the principle that serious fraud allegations are non-arbitrable and should be decided by the civil court; the ratio is used to frame the non-arbitrability doctrine.
Zenith Drugs & Allied Agencies Pvt. Ltd. v. M/s.Nicholas Piramal India Ltd.AIR 2019 SC 3785PositiveCited to emphasize that only disputes specifically agreed to be resolved through arbitration fall within arbitration; complex fraud issues typically require court adjudication.

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Extracted Judgment Text

Exact text extracted from official judgment records.

Arb.A.No.26 OF 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **Arb.A.No.26 OF 2019** **AGAINST THE ORDER IN OS 40/2019 DATED 12-04-2019 OF ADDITIONAL SUB COURT, THALASSERY** ## **APPELLANT/RESPONDENT/DEFENDANT NO.2:** **PILAKKANDI AJMAL, AGED 35 YEARS S/O. PILAKKANDY MUHAMMEDALI,PILAKKANDI MAHAL,PILAKKOOL,THALASSERY-670102,KANNUR DISTRICT** **BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** ## **RESPONDENT/PETITIONER/PLAINTIFFS:** **1 P.P.SATHIQUE, AGED 48, S/O.ABUBACKER HAJI, PARTNER, M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,KANNUR DISTRICT. 2 P.P.ZAKIR HUSSAIN AGED 52 YEARS, S/O.ABUBACKER HAJI, PARTNER, M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,KANNUR DISTRICT. 3 P.P.SHAMSEER AGED 46 YEARS, S/O.ABUBACKER HAJI, PARTNER, M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101, SHAL PALACE, PILAKKOOL, THALASSERY-2, REPRESENTED BY POWER OF ATTORNEY HOLDER, P.P SITHIQUE, AGED 48, S/O.ABUBACKER HAJI,PARTNER,M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,SHAL PALACE,PILAKKOOL, P.P.NOUSHEER, AGED 46, S/O.ABUBACKER HAJI, PARTNER, M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD, THALASSERY-670101, KANNUR DISTRICT.** Arb.A.No.26 OF 2019 2 - **4 P.P.NOUSHEER** **AGED 46 , S/O. ABUBACKER,PARTNER,M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,KANNUR DISTRICT.** - **5 P.P.NIYAS** - **AGED 45 , S/O. ABUBACKER,PARTNER,M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,KANNUR DISTRICT.** - **6 C.BASHEER** **AGED 70 YEARS, S/O.LATE AHAMMED, M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,KANNUR DISTRICT.** - **7 P.P.SHANAVAS** **AGED 46 YEARS, S/O.C.BASHEER,M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,KANNUR DISTRICT.** - **8 P.P.RASHID** - **AHAMMED,AGED 37 YEARS, S/O.C.BASHEER,M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY670101,PILAKKANDI ASSOCIATES, PILAKKOOL,THALASSERY2,REPRESENTED BY POWER OF ATTORNEY HOLDER, C.BASHEER,AGED 70 YEARS, S/O.LATE AHAMMED, M/S. PILAKKANDI ASSOCIATES, AVK NAIR ROAD, THALASSERY670101, PILAKKOOL, THALASSERY-2, KANNUR DISTRICT.** **9 P.P.SARU AGED 66 YEARS, W/O.DR.MAMMOOTTY, PARTNER, M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101,KANNUR DISTRICT.** **10 P.P. BASHEER AGED 47 YEARS, S/O.ABUBACKER, PARTNER, M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670101, SHAL PALACE, PILAKKOOL, THALASSERY-2, REPRESENTED BY POWER OF ATTORNEY HOLDER,P.P.SITHIQUE, AGED 48, S/O.ABUBACKER HAJI,PARTNER,M/S.PILAKKANDI ASSOCIATES, AVK NAIR ROAD,THALASSERY-670102,SHAL PALACE, PILAKKOOL, THALASSERY-670101, KANNUR DISTRICT** **R1-2, R4-7, R9 BY ADV. SRI.K.MOHANAKANNAN R1-2, R4-7, R9 BY ADV. SMT.A.R.PRAVITHA** **THIS ARBITRATION APPEALS HAVING BEEN FINALLY HEARD ON 0612-2019, THE COURT ON 25-02-2020 DELIVERED THE FOLLOWING:** Arb.A.No.26 OF 2019 3 ## **ORDER** The second defendant in O.S.No.40 of 2019 on the file of the Additional Sub Court, Thalassery has come up with this appeal challenging the order in IA.No.828/2019 dated 12.4.2019. 2. The respondents herein as the plaintiffs filed the suit for dissolution of the partnership firm namely M/s Pilakkandi Associates, Thalassery and for rendition of accounts. The appellant herein filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the dispute for arbitration. The court below refused the prayer to refer the matter for arbitration and dismissed the petition. Feeling aggrieved he filed this appeal. 3. M/s.Pilakandi Associates is a registered partnership firm which started as per partnership deed dated 1-9-99 with the plaintiffs, the defendants 3 and 4 and Mr.Pilakandi Muhammed Ali,the father of the 2[nd] defendant. Later it was reconstituted on 8.10.2015 on the death of Mr.Pilakandi Muhammed Ali by making defendant No.2 also as a partner of the firm. 4. Admittedly, as per clause 14(e) of the partnership deed dated 8.10.2015 any dispute between the partners shall be referred to Arbitrator if not settled mutually. Relying on Section 8 of the Arbitration and Conciliation Act, the second defendant has sought for Arb.A.No.26 OF 2019 4 arbitration of the dispute between the partners. The said claim was resisted by the plaintiffs and the defendants 3 and 4 contending that as the suit itself is one for dissolution of firm and rendition of accounts, there is nothing to be referred for arbitration. 5. The partnership deed, admittedly has a clause that in case of dispute the same has to be referred to arbitration. The court below refused to refer the matter to the Arbitrator relying on the decision of this Court in **Khadeeja T.A.v. R.K.Manjusha** [2018 (2) KHC 298] wherein it was held as follows: “Application for settlement of accounts and discharge of liabilities etc. are dealt with under S.46 of the Partnership Act, which is really the consequence of a dissolution of partnership under S.44 of the Act. It has to be done by the Court which dissolves the partnership, being the consequences flowing out of the dissolution and it cannot be referred for arbitration as the question of discharge of liability and settlement of accounts would not arise unless the Court decides that the partnership would be dissolved. It really a consequence flowing out of dissolution of partnership and not vice versa. If the parties are referred to settlement of accounts before the dissolution of partnership, it would amount to putting a cart in front of the horse and hence, not permissible.” 6. The plaintiffs seek the assistance of the Court for dissolution of partnership on the basis of oral and documentary evidence A reading of the plaint would show that there are so many serious Arb.A.No.26 OF 2019 5 allegations against the second defendant which includes misappropriation of funds, unauthorised and illegal collection of rent due to the firm and using the same for his personal use, forging of the signatures of the partners so as to create certain documents fraudulently in his favour, cheating of the partners and acting detrimental to the interest of the firm etc. etc. Raising very serious allegations against the second defendant, the plaintiffs have sought for the dissolution of the partnership firm and also for rendition of accounts. They have also sought for an appointment of a receiver to manage the affairs of the firm. During the pendency of the suit an order of temporary injunction had already been granted by the court restraining him from dealing with the property of the firm. Since serious allegations have been levelled against the second defendant the question is whether the dispute could be decided before an Arbitrator. 7. The learned counsel for the plaintiffs relying on the decision rendered by this Court in **Baburaj v. Faizal** [2014 (2) KLT 238] wherein it was observed that when there are serious allegations as to fraud and misappropriation in the conduct of partnership business, voluminous evidence may have to be let in which requires to be meticulously analysed ,the civil court has proper machinery to adjudicate the issue .So request to appoint an Arbitrator can be Arb.A.No.26 OF 2019 6 declined . 8. In **A. Ayyasamy v. A.Paramasivam and Ors.** [AIR 2016 SC 4675] the Apex Court has taken a view that where there are serious allegations of fraud, they are to be treated as non-arbitrable and it is only the civil court which should decide such matters. However, where there are allegations of fraud simplicitor and such allegations are merely alleged, we are of the opinion it may not be necessary to nullify the effect of the arbitration agreement between the parties as such issues can be determined by the Arbitral Tribunal. 9. The Apex Court in **Zenith Drugs & Allied Agencies Pvt. Ltd. v. M/s.Nicholas Piramal India Ltd.** [AIR 2019 SC 3785] held that only the disputes which are specifically agreed to be resolved through arbitration can be subject matter of arbitration. It was further held that when fraud and such other complex and complicated issue of allegations are raised, that could be decided only by the court on appreciation of the evidence adduced by the parties and in such cases parties cannot be referred to arbitration. 10. More importantly, the plaint reveals serious allegations against the second defendant and those allegations cannot be treated as minor allegations of fraud merely alleged, which could be decided before an Arbitrator. In fact elaborate evidence has to be adduced by both sides and the court has to scan the evidence Arb.A.No.26 OF 2019 7 meticulously for determination of the present controversy, whether the suit for dissolution of firm is to be decreed or not and also whether the plaintiffs could enforce such a right for rendition of accounts. Though there is definite clause in the partnership deed, the dispute appears to be complex and complicated and as not one to be decided by the Arbitrator. It is important to notice here that when fraud and misappropriation of accounts etc. are alleged the nature and amplitude of the evidence that will be adduced will be invariably complicated and elaborate. Then it will be essential for the court to evaluate and appreciate it on the basis of the pleadings. That being the case, the finding of the court below that the dissolution of the firm sought for by the plaintiffs on various grounds mentioned above are to be decided first before settling the accounts cannot be said to be unjustified. In view of the above discussion I do not find any error in the order passed by the learned Sub Judge. The trial court shall proceed with the suit in accordance with law. Dismissed Sd/SHIRCY V JUDGE smm Arb.A.No.26 OF 2019 8