Suhaib V vs Sabira Ibrahim And Ors

Ext.P3 order dated 04.12.2020 in I.A.No.1/2020 in CMA(Arb)No.737/2020 passed by the District Judge, Ernakulam, is challenged by the

respondents therein, in this proceeding.

By Ext.P3, the petitioner was restrained from causing obstruction to respondents' enjoyment and entry into six hotels scheduled in the petition and

conducting inspection of accounts etc.

The parties before the court below are partners. Clause 15 of Deed of Partnership provided for settlement of disputes through arbitration in the

event of differences of opinion arising between partners in the matter of carrying on business. Invoking Clause 15, the respondents filed

CMA(Arb)No.737/2020 and obtained Ext.P3 ex parte order of injunction.

The petitioner entered appearance and filed counter questioning maintainability of the proceeding. It is seen that instead of canvassing for decision

as to maintainability of the proceeding, the petitioner rushed to this Court and filed this original petition invoking Article 227 of the Constitution of India.

The Contentions raised by the petitioner in this proceeding is two folded namely;

(a) the disputes that has arisen between parties is a commercial dispute within the meaning of Section 2(1)(c)(xv) of the Commercial Acouts

Act,2015(for short, 'the Act') and therefore, jurisdiction of the court is barred by Section 10(3) of the Act and

(b) respondents did not have intention to take the matter to arbitration. In this respect, a decision reported in Sundaram Finance Ltd.v. NEPC India

Ltd.[1999 KHC 1012] was cited before me by the learned counsel for the respondents.

I heard the learned counsel for the petitioner as well as the learned counsel for the respondents.

I fail to understand as to why the objection to maintainability of CMA(Arb) No.737/2020 was not pursued by the petitioner before the court below

and a decision invited. It was only reasonable that the question of maintainability was raised and a decision canvassed before the court below itself.

The question as to whether the dispute between parties is a commercial dispute within the meaning of the Act, is a matter to be adjudicated on facts

as well as law. Likewise, question as to whether respondents intended to take the dispute in question to arbitration is yet another matter. I do not think

it proper to take up these two questions for consideration in this proceeding instituted Article 227 of the Constitution of India for the first time, when

there was sufficient opportunity open to the petitioner to agitate these matters before the court below itself.

Therefore, I am of the opinion that the petitioner has to approach the court below and pursue his contention as to maintainability of proceeding there

itself.

In the result, this original petition is disposed of directing the court below to decide the question as to maintainability raised by the petitioner in his

counter. A decision in this respect shall be taken after hearing both parties, as expeditiously as possible within a period of one month from today.

Ext.P3 passed by the court below is modified and the parties are directed to maintain status quo unless the court below has reasons to pass any

interim orders of its own in accordance with the situation arising before it.

All pending interlocutory applications will stand closed.