IMPORTANT POINT
When an application under section 11 of the Act is filed, it is for the Chief Justice or his designate to decide whether there is an arbitration agreement, as defined in the Act and whether the party who has made a request before him, is a party to such an agreement.
2. Existence of a valid and enforceable arbitration agreement is a condition precedent before an arbitrator can be appointed under section 11 of the Act.

JUDGMENT

R.V.Raveendran, J. —

Leave granted. Heard.

2. The appellant and first respondent are brothers. A deed of partnership dated 12.6.1988 was entered among Mr. Kanji Pitamber Ashra and his two grandsons (appellant and first respondent) to carry on the business under the name and style of M/s. Kanji Pitamber & Co., their shares being 40%, 30% and 30% respectively. Clause 10 provided that death of any partner shall not dissolve the partnership firm as to the surviving partners. Clause 11 of the said agreement provided that all disputes between the partners regarding the rights and liabilities of partners or in regard to the transactions or accounts of the partnership shall be referred to arbitration.

3. The appellant is permanent resident of United States of America. Kanji Pitamber Ashra died on 4.9.1991. According to appellant, the appellant and first respondent continued the business of M/s. Kanji Pitamber & Co., (second respondent firm), by increasing their profit and loss ratio from 30% to 50% each. The appellant alleges that in or about 2008 he came to know that the first respondent was claiming that fresh partnership deeds were executed by the parties on 6.9.1991 and 19.5.2000. The appellant claims that he did not execute any such deeds. He claims that the firm’s bankers by their letter dated 7.7.2008 have confirmed that the only partnership deed of the firm held by them was the deed dated 12.6.1988. He also claims that the first respondent, as partner of the second respondent firm had sent a letter dated 1.7.2008 to the Foreign Exchange Brokers Association of India (of which the second respondent is a member) confirming that the appellant and first respondent were the partners as per the deed dated 12.6.1988 and there was no change in the said partnership deed.

4. According to the first respondent, immediately after the death of their grandfather, a fresh partnership deed was executed on 6.9.1991 and again another deed was executed on 19.5.2000 by the appellant and first respondent; that under deed dated 6.9.1991, the share of the appellant was reduced from 50% to 25% and under the deed dated 19.5.2000, the share of the appellant was reduced from 25% to 10% with a further condition that if the appellant did not attend to the business on account of his commitments elsewhere, the entire profit and loss of the business shall belong to or borne by the first respondent. The first respondent by letter dated 19.8.2010 stated that the shares of appellant and first respondent in the firm were 10% and 90% respectively; that the appellant had abandoned his interest in the firm and showed no inclination to participate in its business; that several issues relating to the firm had arisen; and that it was necessary to sort out those disputes by arbitration. The first respondent therefore appointed his arbitrator and called upon the appellant to appoint his arbitrator. The appellant sent a reply dated 7.9.2010 stating that he had not signed the partnership deeds dated 6.9.1991 or 19.5.2010 and the said documents were forged documents and not binding and therefore the question of appointing an arbitrator in terms of the said documents did not arise.

5. The first respondent filed an application under section 11 of the Arbitration and Conciliation Act, 1996 (‘Act’ for short) alleging that disputes had arisen between appellant and first respondent, who were the partners of the second respondent firm governed by partnership deed dated 19.5.2000; and that clause 12 thereof provided for settlement of disputes by arbitration. He therefore prayed that the person named in his notice dated 19.8.2010, as his arbitrator, be appointed as the sole arbitrator in terms of the arbitration agreement contained in the partnership deed dated 19.5.2000. The appellant resisted the said petition by filing detailed objections denying the existence of the partnership deeds dated 6.9.1991 and 19.5.2000. The appellant asserted that they were governed by the pa