Kerala High Court
K. Ramabhadran vs M/S. Luxury Sands Kerala Private … on 30 June, 2025
2025:KER:47320
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 30TH DAY OF JUNE 2025 / 9TH ASHADHA, 1947
AR NO. 150 OF 2024
PETITIONER:
K. RAMABHADRAN
AGED 74 YEARS
NO. 14,
PALM GREEN VILLA,
VYTILLA,
ERNAKULAM,
PIN - 682019
BY ADVS.
SRI.JOLLY JOHN
SMT.LIZA MEGHAN CYRIAC
SMT.IRENE BABU
SHRI.HARIKRISHNA S.
SMT.MEHNAZ P. MOHAMMED
RESPONDENTS:
1 M/S. LUXURY SANDS KERALA PRIVATE LIMITED
C.B NO.112,
RIVIERA RETREAT,
COCHIN,
ERNAKULAM,
PIN - 682013
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2 LUKE ANTONY
KOCHERY HOUSE,
KURISUMOODU P.O,
CHANGANASSERY,
KOTTAYAM,
PIN - 686101
3 MR. K.R POULOSE
KAVIKUNNEL,
KUNNACKAL P.O,
MUVATTUPUZHA,
ERNAKULAM,
PIN - 686661
BY ADVS.
SMT.SMITHA S.PILLAI
SHRI.MATHEWS K. UTHUPPACHAN
SHRI.B.RAHUL KRISHNAN
SRI.N.NANDAKUMARA MENON (SR.)
SHRI.P.K.MANOJKUMAR
SMT.ALICE THOMAS
SMT.M.C.SINY
SRI.JOSEPH MARKOSE (SR.)
THIS ARBITRATION REQUEST HAVING COME UP FOR
ADMISSION ON 30.06.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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O R D E R
1. This is an application filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996, to appoint an
Arbitrator in view of the arbitration clause contained in
Annexure A12 MoU dated 24/06/2009, which is
renewed by Annexure A2 MoU dated 06/11/2009.
2. The Application is opposed by the respondents 1 and 3
by filing Counter Affidavit and the 2 nd respondent by
filing separate Counter Affidavit.
3. The substantial contentions raised in the Counter
Affidavits are that there is no Arbitration Clause in the
MoU; that even if there is an Arbitration Clause, there
is no arbitrable dispute arising out of the MoU and that
the present Application is barred by limitation.
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4. I heard the learned counsel for the applicant, Smt. Jolly
John, the learned Senior Counsel for the respondents
1 and 3, Sri. N. Nandakumara Menon instructed by
Advocate Smt. Smitha S. Pillai and the learned Senior
Counsel for the 2nd respondent, Sri. Joseph Markos,
instructed by Advocate Sri. Mathews K. Uthuppachan.
5. The essential facts which are relevant for the
adjudication of this Arbitration Request are more or
less admitted. The applicant and the 1st
respondent/private limited Company represented by
the 2nd respondent executed Annexure A12 agreement
dated 24.06.2009 for the purchase of a quarry
belonging to the 1st respondent for a total consideration
of Rs.17.15 Crores. The period for performance of the
said MoU was up to 10/08/2009. As per Annexure A12
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MoU, the applicant paid an amount of Rs.10,00,000/-
to the 1st respondent. After the expiry of the period for
performance of Annexure A12, Annexure A2 MoU
dated 06/11/2009 was executed between the applicant
and the 1st respondent extending the time for
performance of the MoU till 30.11.2009. As per
Annexure A2 MoU, the applicant paid an additional
amount of Rs.1 Crore towards advance sale
consideration. The applicant did not purchase the
property within the extended time. It is the case of the
applicant that there arose a dispute between the
applicant and the 1st respondent with regard to the
extent involved in Annexure A12 and A2 and on
account of the same, he could not purchase the
property before 30.11.2009. The 1st respondent lodged
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Annexure A3 caveat on 20.01.2010. The applicant filed
an application under Section 9 of the Arbitration and
Conciliation Act before the District Court. The District
Court passed Annexure A4 Order dated 17/04/2010
holding that the clauses contained in Annexure A12
and A2 do not amount to an Arbitration Clause and that
the applicant had not made out a prima facie case. The
applicant filed the Arbitration Appeal No.26/2010
before this Court challenging Annexure A4 Order
passed by the District Court and the said Arbitration
Appeal was disposed of by Ext.A5 judgment dated
22.06.2023. In the meantime, the shares of the 1st
respondent Company were purchased by the 3rd
respondent and the 3rd respondent became the
Managing Director of the Company. After the passing
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of the Annexure A5 judgment, the applicant issued
Annexure A6, A7 and A8 Notices dated 02/04/2024 to
respondents 1 to 3 and the same were replied to by the
respondents 1 to 3 by sending Annexure A9, A10 and
A11. Since the respondents are not amenable to the
arbitration proposed by the applicant in Annexure A6,
A7 and A8, the present Arbitration Request is filed.
6. The contention of the learned counsel for the appellant
is that in view of the specific finding in Annexure A4
Order that there is no legally valid arbitration clause in
Annexure A12, the appellant was prevented from
invoking the said clause. It is only after disposal of the
Arbitration Appeal filed by the applicant before this
Court as per Annexure A5 clarifying that the finding of
the District Court regarding the validity of arbitration
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clause need only be taken to be a prima facie opinion
expressed by the Court and shall not bind the parties in
the subsequent proceedings, the applicant got the right
to file an application under Section 11(6) before this
Court to appoint an arbitrator invoking the arbitration
clause in Annexure A12. The finding in Annexure A4
Order prevented the applicant from agitating the said
issue again on the principle of res judicata till the same
was set aside. The learned counsel relied on the
decision of the Hon’ble Supreme Court in
Ramachandra Rao S. v. S. Nagabhushana Rao and
others [AIR 2022 SC 5317] in support of his
contention.
7. The learned Senior Counsel for the 2nd respondent
contended that there is no bonafides on the part of the
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applicant in filing the application. The applicant was not
in any way prevented from approaching this Court
under Section 11(6) of the Arbitration and Conciliation
Act on account of the pendency of the proceedings
under Section 9. There is specific finding in Annexure
A4 Order of the District Court that there is a failure on
the part of the applicant to raise the necessary sale
consideration to honour the obligation arising out of
Annexure A12 and A2 MoU. It is also found that there
is no prima facie case made out by the applicant to get
the interim order. If the finding regarding the validity of
the Arbitration Clause would amount to res judicata in
subsequent proceedings, the aforesaid findings in
favour of the respondents will also prevent the
applicant from agitating the matter again. The learned
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Senior Counsel relied on the decision of this Court in
Laly Joseph v. Chazhikattu Hospitals Private
Limited [2025 KHC 650] to substantiate his
contention. Learned Senior Counsel concluded his
arguments by contending that the application is
hopelessly time-barred.
8. The learned counsel for the 3 rd respondent contended
that the 3rd respondent purchased the shares of the 1 st
respondent Company as a bonafide purchaser. He was
not aware of any of these proceedings initiated by the
applicant. The learned Senior Counsel supported the
arguments of the learned Senior Counsel for the 2 nd
respondent and contended that the application is
hopelessly time-barred. At any rate, at this distance of
time, the obligations arising out of the MoU could not be
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enforced.
9. I have considered the rival contentions.
10.It is true that in the Annexure A4 Order, the District
Court has considered the validity of the Arbitration
Clause of Annexure A12 MoU and entered a specific
finding that the said Clause cannot be said to be a
legally valid Arbitration clause. It is also found that the
applicant has not made out any prima facie case to get
an order for interim measure under Section 9 of the
Arbitration and Conciliation Act. Even though both sides
rely on the findings in Annexure A4 Order in their favour,
I am of the view that whatever be the findings in
Annexure A4 Order, the said findings are only prima
facie findings for the purpose of deciding whether the
applicant is entitled to get the order for interim measure
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sought under Section 9 of the Arbitration and
Conciliation Act or not. The findings in Annexure A4 will
not in any way prevent the applicant from approaching
this Court under Section 11(6) of the Arbitration and
Conciliation Act for the appointment of an Arbitrator.
This Court held in the decision in Laly Joseph (Supra)
that the findings under Section 9 of the Arbitration and
Conciliation Act is only a prima facie finding for granting
interim measure sought under Section 9 of the Act and
that the findings in the order under Section 9 application
is not binding on either this Court exercising jurisdiction
under Section 11(6) or the Arbitrator appointed by this
Court. In view of the aforesaid decision, I am of the view
that the applicant should have filed an application for the
appointment of an Arbitrator within a reasonable time
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after the Annexure A4 Order. The pendency of
Arbitration Appeal 26/2010 in this Court is not a ground
or reason for not filing the Arbitration Request till this
time. In the Annexure A5 judgment, this Court made it
clear that the finding of the District Court regarding the
validity of the Arbitration Clause is only a prima facie
opinion expressed by the Court and shall not bind the
parties in the subsequent proceedings. Even without
such observation, the applicant was entitled to file an
application under Section 11(6) of the Arbitration and
Conciliation Act and in such proceedings, this Court
would have considered whether the clauses mentioned
in Annexure A12 is an Arbitration Clause or not. The
decision cited by the learned counsel for the applicant in
Ramachandra Rao S. (supra) is clearly distinguishable
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on facts. Here, the findings made by the District Court
are only prima facie findings for the purpose of
considering the prayer for interim measure. Such prima
facie findings could not be treated as an issue heard
and finally decided to attract the bar of res-judicata.
11. It is on record that Annexure A6, A7 and A8 Notices
were issued only on 02/04/2024 whereas Annexure A5
judgment was passed on 22.06.2023.
12.It is well settled by the decision of the Apex Court in
Aslam Ismail Khan Deshmukh v. ASAP Fluids Pvt.
Ltd. [(2025) 1 SCC 502] that if the claim with respect to
which the Arbitration Request is made is ex-facie and
hopelessly time-barred, this Court can reject the
Arbitration Request. It is further held that it is the duty of
the Courts to prima facie examine and reject non-
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arbitrable or dead claims, so as to protect the other
party from being drawn into a time-consuming and
costly arbitration process.
13.Annexure A6, A7 and A8 Notices for invoking the
Arbitration clause were issued only on 02.04.2024 with
respect to the claim arising out of Annexure A12 MoU
dated 24.06.2009 and Annexure A2 MoU dated
06.11.2009. The Applicant is attempting to initiate
arbitration proceedings with respect to a claim which is
ex facie and hopelessly time-barred.
14.Accordingly, this Arbitration Request is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
sms
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APPENDIX OF AR 150/2024
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE MEMORANDUM OF
UNDERSTANDING DATED 24/06/2009.
Annexure A2 THE TRUE COPY OF THE MEMORANDUM OF
UNDERSTANDING (MOU) DATED 6/11/2009.
Annexure A3 THE TRUE COPY OF THE CAVEAT PETITION
FILED BEFORE THE SUB COURT
MUVATTUPUZHA DATED 20/01/2010
Annexure A4 THE TRUE COPY OF THE ORDER IN O.P
(ARBITRATION) NO.266 OF 2010 BY THE
HONOURABLE DISTRICT COURT, ERNAKULAM
DATED 17/04/2010.
Annexure A5 THE TRUE COPY OF THE JUDGEMENT OF THE
HIGH COURT OF KERALA DATED 22/06/2023
IN ARB.A.NO. 26 OF 2010.
Annexure A6 THE TRUE COPY OF THE NOTICE OF
ARBITRATION DATED 02/04/2024 SENT TO
THE 1ST RESPONDENT
Annexure A7 THE TRUE COPY OF THE NOTICE OF
ARBITRATION DATED 02/04/2024 SENT TO
THE 2ND RESPONDENT.
Annexure A8 THE TRUE COPY OF THE NOTICE OF
ARBITRATION DATED 02/04/2024 SENT TO
THE 3RD RESPONDENT.
Annexure A9 THE TRUE COPY OF THE LETTER OF THE 3RD
RESPONDENT DATED 05/04/2024.
Annexure A10 THE TRUE COPY OF THE REPLY NOTICE
GIVEN BY THE 2ND RESPONDENT DATED
16/04/2024
Annexure A11 THE TRUE COPY OF THE LETTER ISSUED BY
THE 3RD RESPONDENT DATED 31/05/2024.
Annexure A12 TRUE COPY OF THE AGREEMENT DATED 24
JUNE 2009 BETWEEN THE PETITIONER AND
THE 1ST RESPONDENT
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Annexure A13 TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 31ST AUGUST 2010 FILED BY THE
2ND RESPONDENT HEREIN IN THE
ARBITRATION APPEAL NO: 26/2010 WITHOUT
THE ANNEXURES MENTIONED THEREIN