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2025 Supreme(Online)(Kar) 21531
KARNATAKA HIGH COURT
E.S. INDIRESH, J
DR. MAHESH T. BHAT – Appellant
Versus
DR. GANESH T. BHAT – Respondent
CIVIL MISCELLANEOUS PETITION NO.87 OF 2024
For the Appellants/Petitioners: SRI. YASHODHAR HEGDE
For the Respondents: SRI. K. RAVISHANKAR
The court affirmed the appointment of an arbitrator for ongoing disputes despite existing civil suits and limitations, emphasizing the choice of the aggrieved party over forums for resolution.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 11(6) - Appointment of Arbitrator - Disputes arising from partnership - The petitioner seeks the appointment of a sole arbitrator based on an agreement in a partnership deed to resolve disputes pertaining to property issues. The respondent counters with objections related to the limitation and parallel civil proceedings. (Paras 1, 5, 9, 10)
(B) Limitation Act, 1963 - Article 5 - Claiming accounts and rights in dissolved partnerships is actionable within three years following dissolution. The dispute over the interpretation of wills, and the right to seek arbitration, is explored, with the court dismissing the respondent's objections. (Paras 5, 9, 10)
Facts of the case:
Dispute over partnership firm following the death of the mother of both parties, leading to claims based on the Will dated 28th June 2007 regarding property avails from a partnership. Notice for arbitration issued on 23rd August 2023 was deemed not barred by limitation.
Findings of Court:
The objection regarding the limitation period is rejected, affirming the ongoing nature of the disputes, allowing arbitration in accordance with the partnership deed.
Issues: 1) Whether the claim for appointment of an arbitrator is barred by limitation? 2) Whether the existence of civil suits impacts the appointment of an arbitrator?
Ratio Decidendi: The claim made by the petitioner is subsisting, thus the court found it justifiable to appoint an arbitrator, emphasizing the choice of dispute resolution.
Result: Civil Miscellaneous Petition allowed.
| Table of Content |
|---|
| 1. dispute regarding partnership following the death of the co-owner. (Para 1 , 3 , 4) |
| 2. arguments regarding limitation and concurrent civil actions. (Para 2 , 5) |
| 3. court observations on the disposition of property and arbitration viability. (Para 6 , 7) |
| 4. court's legal reasoning for allowing the arbitration. (Para 9) |
ORAL ORDER
This petition is filed by the petitioner seeking appointment of the Sole Arbitrator in terms of Clause 21 of the Deed of Reconstitution of the Partnership dated 19th March, 2020 (Annexure-C) to adjudicate upon the disputes which have arisen between the petitioner and the respondent.
2. Heard Sri. Yashodhar Hegde, learned counsel appearing for the petitioner and Sri. K. Ravishankar, learned counsel appearing for the respondent.
3. Sri. Yashodhar Hegde, learned counsel appearing for the petitioner reiterates the facts of the case and submits that, originally the subject land belonged to the mother of the petitioner and the respondent and she died on 26th September, 2017 leaving behind the testament dated 28th June, 2007 (Annexure-B). By referring to the Will dated 28th June, 2007 (Annexure-B), learned counsel appearing for the petitioner submitted that the wish of the testator is to constitute a partnership firm as "BHAT'S NURSING HOME" and categorically stated that the right over the land and building in relation to the Nursing Home shall be split in to three divisions as per the Will in favour of children. It is also submitted by learned counsel appearing for the petitioner that the notice for appointment of arbitration was issued on 23rd August, 2023 (Annexure-D) and
03rd October, 2023 (Annexure-E).
4. Learned counsel appearing for the petitioner further submitted that the petitioner has filed two suits in Original Suit No.492 of 2020 before the Civil Court, Mangaluru, seeking relief of injunction against the respondent and Original Suit No.130 of 2021 before the Senior Civil Judge, Mangaluru, seeking relief of partition and separate division by metes and bounds in respect of the subject land and therefore, the subject land being excluded by the testator in the Will dated 28th June, 2007 (Annexure-B), this Court is required to appoint Arbitrator for resolution of disputes between the parties in terms of Clause 21 of the Deed of Reconstitution of the Partnership dated 19th March, 2020 (Annexure-C).
5. Per contra, Sri. K. Ravishankar, learned counsel appearing for the respondent reiterates the statement of objections and raised the preliminary objection that the claim made by the petitioner, seeking appointment of Arbitrator is barred by limitation. Secondly, he submitted that, as the petitioner has filed suit before the competent Civil Court, the parallel proceedings cannot be continued by appointing an Arbitrator. Learned counsel appearing for the respondent further invited the attention of the Court to the Section 69 of the Indian Partnership Act, 1932 and accordingly, sought for dismissal of the petition. In this regard, learned counsel Sri. K. Ravishankar, places reliance on the judgment of Jammu & Kashmir and Ladakh High Court in the case ofP.K. GLOBAL TRENDS PRIVATE LIMITED vs. AIRPORT AUTHORITY OF INDIA reported in 2022(1) SriLJ 385 and judgment of Hon'ble Supreme Court in the case of BHARAT SANCHAR NIGAM LTD. AND ANOTHER vs. M/S. NORTEL NETWORKS INDIA PVT. LTD. reported in (2021)5 SCC 738 and contended that the petition does not survive for consideration since the issue raised by the petitioner has become deadwood. Accordingly, by referring to Section 5 of the Limitation Act, 1962, he sought for dismissal of the petition.
6. In the light of submission made by learned counsel appearing for the parties, it is not in dispute that the subject matter of the land is belonged to mother of the petitioner and the respondent and she died leaving behind the Will dated 28th June, 2007 (Annexure-B). The clause 4 of the said Will reads as under:
"4. The land and building belongs to me as per court vo
