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2009 Supreme(AP) 305

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
NOOTY RAMAMOHANA RAO, J.
Dr. Ganta Noble and others - Appellant
versus
V.Paul Himamsu and others – Respondents
A.A. No. 88 of 2008
Decided on 24-04-2009.

Advocates appeared:
Mr. P. Vikram, Advocate for the Applicants.
Mr. J.C. Francis, Advocate for Respondent NO.1.

Headnote:(A) Arbitration and Conciliation Act, 1996-Sections 11(5) and (6) r/w Scheme of Appointment of Arbitrator, 1996-Dispute arising amongst committee or members of society in respect of any matter relating to affairs of society-Parties may seek resolution of their disputes through process of Arbitration and Conciliation Act or by way of approaching District Court choice has been left to suitor. (Paras 9 and 11)

       (B) Limitation Act, 1963-Article 137-Appointment of Arbitrator-Bar of limitation-Question of limitation is a mixed question of fact and law-Evidence has got to be led in for purposes of definitely determining that claim and cause are hit by limitation-When no opinion can be pronounced with certainty, it is appropriate to leave the matter for adjudication to Arbitral Tribunal. (Paras 12 and 13)

       

ORDER

This application has been moved seeking intervention for constituting the Arbitral Tribunal for resolving the disputes that have cropped up between the parties. The 6th applicant is a society, which is registered under the provisions of the Andhra Pradesh Societies Registration Act. It is asserted that the 15t applicant was the Secretary-cum Correspondent of the said society. As per Bye-law No.5 of the 6th respondent society, the Executive Body shall consist of nine members and as per Bye-law No.6, the General Body of the society shall meet once in every year in the month of June to elect the Executive Body, though the General Body can be convened at any time by the Executive Body giving ten days notice therefore. The Executive Body was required to meet once in a month or at such earlier point of time. The quoram for the meeting of the General Body and the Executive Body has been fixed as 2/3rd of members. It is represented that the 6th applicant society has been started with the aim and object of promoting educational institutions for imparting education in English and Telugu Media, for securing and promoting high educational standards amongst the religious minority and the weaker sections. The duties and responsibilities of the members of the Executive Body have all been spelt out in detail. The affairs of the society were conducted very smoothly and without any hitch or hindrance till the year 2003. The 6th applicant society has been maintaining its bank account with the State Bank of India, Surya Bagh Extension counter, Visakhapatnam. However, it is alleged that the respondents fabricated a letter of resignation dated 22-5-2003, said to have been submitted by the 2nd applicant herein and that on 22-6-2003, the 15t applicant is said to have submitted his resignation as Secretary-cum-Correspondent of the society and in his place the 15t respondent was said to have been elected while his wife the 2nd respondent is said to have been elected as the Treasurer at the meeting of the society held on 29-6-2003 and on the strength and basis of these fabricated documents, the respondents have started operating the bank accounts and started exercising extensive control over the affairs of the 6th applicant society. The applicants apart from disputing that they have ever resigned to the respective elected offices of the Executive Body of the society, have also disputed the fact that the meeting was either called or held on 29-6-2003.

2. In those set of circumstances, the 1st applicant filed an Arbitration O.P.No. 426 of 2003 before the District Court, Vizianagaram and initially the District Court has granted an interim injunction restraining the respondents herein from functioning as members of the Executive Body. Another O.P.No. 669 of 2003 has been instituted under Section 11 of the Arbitration and Conciliation Act before the District Court, Vizianagaram for appointment of an Arbitrator. The District Court by its order dated 19-1-2004 appointed Sri J.Janaki Rama Rao, advocate as Arbitrator to adjudicate the disputes amongst the parties. The respondents have also instituted Arbitration O.P.No. 668 of 2003 for appointment of a Receiver for taking care of the affairs of the society pending the arbitration proceedings. In the said O.P Sri J. Janaki Rama Rao, Advocate has been appointed as the Receiver for managing the affairs of the society. The matter was then carried in Appeal by way of C.M.A.Nos. 564 and 565 of 2004 before this court. It was pointed out by this court that the District Court ought to have appointed two separate persons as a Receiver and as an Arbitrator instead of appointing the same person. Hence, the District Court on 26-2-2005 appointed Sri D.V.V. Sastry as a Receiver. Initially Sri J.Janaki Rama Rao, the Arbitrator issued notices to the parties after entering upon the reference. Ultimately, the said Arbitrator has made a request to the District Court to discharge him, as he is not in a position to discharge the




















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