Isabella Mariam

The High Court of Kerala Single Bench of Justice S. Manu rejected an arbitration request seeking appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, after finding that the applicants had not issued a valid request under Section 21, which must precede an application for court appointment. The dispute arose from a partnership business, where the applicants alleged that the managing partner and another partner controlled the firm’s affairs, withheld books of accounts, and did not share profits, alongside allegations of parallel entities being set up for the same line of work. Justice S. Manu held that the email relied upon by the applicants merely sought the respondents’ suggestion for an arbitrator and did not identify any specific dispute, invoke an arbitration clause, or indicate which partnership deed was being relied upon.

The applicants and respondents 1 and 2 entered into a partnership under the name M/s. Roofs and Shades through a partnership deed executed in February 2005, with equal shares, where the first respondent acted as the Managing Partner. Accounts were settled and profits shared until the financial year 2010–2011. In April 2011, a second partnership deed was executed forming M/s. Roofs and Shades Structural Solutions, which, according to the applicants, continued the earlier business with management remaining with respondents 1 and 2.

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Disputes arose regarding non-production of accounts, non-sharing of profits from 2011 onwards, and alleged breach of partnership terms by forming other firms for similar business. An e-mail dated 29 September 2023 was sent by the applicants suggesting the name of an arbitrator. Alleging non-response, the applicants approached the Court seeking appointment of an arbitrator under the Arbitration and Conciliation Act, 1996. Respondents contested maintainability, asserting absence of a valid notice under Section 21 of the Act and disputing continuity between the two partnership firms.

The Court examined the scheme of the Arbitration and Conciliation Act, 1996 and observed that “Section 21 of the Arbitration and Conciliation Act provides that the arbitral proceedings in 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.” The Court recorded that “no exact form is prescribed for the request” but “from the language of the provision, it is clear that the request shall be in respect of a ‘particular dispute’ and shall be for ‘that dispute to be referred to arbitration’.”

The Court stated that “mentioning of the particular dispute is a rudimentary requirement in terms of the provision.” It further noted that “making a request under Section 21 of the Act is an essential pre-requisite under the scheme of the Act for approaching the High Court under Section 11.” The Court observed that “a request under Section 21 enables the calculation of limitation and it is a necessary pre-condition for filing an application under Section 11 of the Act.”

Referring to precedent, the Court recorded that “there must be a clear notice invoking arbitration, setting out the ‘particular dispute’,” failing which the request would not serve the statutory purpose. The Court noted that the communication relied on by the applicants merely sought suggestions regarding appointment of an arbitrator and “there is no mention in the above communication about any particular dispute.”

The Court observed that “there is no reference to any specific agreement or arbitration clause” and “no definite demands or specifics of the disputes are mentioned.” It further recorded that where “two different partnership deeds containing arbitration clauses exist,” the communication “does not indicate which arbitration clause is invoked.”

The Court stated that “with no specific arbitration clause being pointed out and no particular dispute being mentioned in it, the date of receipt of Annexure-A3 cannot be considered as the point of time of commencement of arbitration.” It finally observed that “Annexure-A3, being too vague, cannot be considered as a proper and valid request under Section 21 of the Act.”

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The Court recorded its finding that “the contention of the respondents that this arbitration request is premature for want of a proper request under Section 21 of the Act is correct. Annexure-A3, being too vague, cannot be considered as a proper and valid request under Section 21 of the Act.”

In view of the above finding, the Court stated that “it is therefore unnecessary to consider the other contentions of the parties. In the result, arbitration request is rejected.”

Advocates Representing the Parties

For the Petitioners: Smt. M.A. Vaheeda Babu, Sri. Babu Karukapadath, Sri. P.K. Abdul Rahiman, Sri. Karukapadath Wazim Babu, Smt. P. Lakshmi, Smt. Aysha E.M., Sri. Abuasil A.K., Smt. Haniya Nafeeza V.S., Sri. Hashim K.M.

For the Respondents: Sri. Vijay V. Paul, Sri. Anil Sebastian Pulickel, Sri. Ajay V. Anand, Smt. Shilpa Soman, Sri. Rojit Zachariah, Smt. Angela Elsa John, Sri. Safal P. Salim, Sri. Hamed Abdulla Javahir, Sri. A.K. Muhammed Hashim, Sri. Thwalhath V., Sri. Arun Thomas, Smt. Veena Raveendran, Smt. Karthika Maria, Sri. Shinto Mathew Abraham, Smt. Leah Rachel Ninan, Sri. Mathew Nevin Thomas, Sri. Karthik Rajagopal, Sri. Kurian Antony Mathew, Smt. Aparnna S., Sri. Noel Ninan Ninan, Sri. Adeen Nazar, Sri. Arun Joseph Mathew.

Case Title: Sajid Pasha v. Abdunnasir P. & Others
Neutral Citation: 2025: KER:96176
Case Number: A.R. No. 8 of 2025
Bench: Justice S. Manu