A THANGAVELU Vs. A RAMASAMY

JUDGEMENT

(1.) AS against the order passed in in I.A.No. 3 of 2005 in A.P.No.19 of 2004 passed by the learned Arbitrator rejecting the request of the revision petitioners to dismiss the Arbitration Proceedings.

(2.) INTERLOCUTORY Application No.3 of 2005 has been filed before the Sole Arbitrator by the revision petitioners/partners contending that they have not consented for the nomination of the Arbitrator and they were not willing to refer the matter for arbitral tribunal. Moreover O.S.No.1488 of 2003 has been filed before the Prl.Subordiante Judge, Coimabatore against the partners of the Kalyana Mandapam in respect of joint family properties including the Kalyana Mandapam and interim injunction was also obtained not to alienate the said property. Hence they are not in a position to submit to the arbitration proceedings in respect of the Kalyana Mandapam property. This fact was already communicated to the previous Arbitrator and also to the present Arbitrator raising their objections. The first respondent also filed Arbitration O.P.No.68 of 2004 before the First Addl.District Judge, Coimbatore u/s.9 of the Arbitration and Conciliation Act and in the I.A.417 of 2004 an Advocate commissioner was also appointed to note down the physical features and to take inventory in respect of the Kalyana Mandapam. Hence they prayed for dismissal of the arbitration proceedings.

(3.) LEARNED counsel for the revision petitioners contended that the Kalyana Mandapam which is the subject matter of the Arbitration proceedings is also the subject matter of the pending suit filed by the daughter of the deceased brother in O.S.No.1488 of 2003 claiming the same as a joint family property. In the said suit injunction has also been granted from alienating the said property and hence the arbitration proceedings to frame a scheme and to render accounts cannot be continued for the present since the title to the Kalyana Mandapam itself is yet to be decided by the trial court. Further the substitution procedure for appointing the present Arbitrator is not correctly followed and since the condonation period is not provided under Section 13, Section 5 of the Limitation Act automatically applies to the present case.