'Duly Certified Copy' Under HC Arbitration Scheme Can Include Party Or Counsel Attestation: Kerala High Court

The Kerala High Court has recently held that, for the purpose of arbitration requests filed under the Kerala High Court Scheme for Appointment of Arbitrators, 1996, a "duly certified copy" of a private arbitration agreement does not have to be certified by a public authority.

It held that the requirement is satisfied where the party files an affidavit certifying the copy as a true copy of the original, explains why the original has not been produced, and submits a copy attested to by the party or its counsel.

Justice S. Manu delivered the ruling while allowing an arbitration request filed by Bharat Sursingh Asher, Rajesh Girdhardas Asher and Hemangi B. Asher. They sought the appointment of arbitrators to resolve disputes relating to the partnership firm, Jairam and Sons.

"In such situations there cannot be any certification of a copy of the agreement by a public authority. Therefore, the expression 'duly certified copy thereof' employed in paragraph 2(1)(a) of the Scheme, in the case of private agreements, can only mean copies duly attested by the parties to the agreement or their counsel.", the court held.

The dispute arose after the deaths of two partners of the firm. According to the applicants, the surviving partner did not cooperate in reconstituting the partnership. They relied on Clause 17 of the partnership deed to contend that the partnership had to be reconstituted after the death of a partner.

They also contended that the lack of cooperation prevented the firm from filing annual returns and meeting compliance requirements with authorities and banks. The applicants further alleged that the surviving partner levelled allegations of mismanagement against them; approached the police, leading to registration of a criminal case; and did not respond to a notice invoking the arbitration clause.

The surviving partner opposed the arbitration request. She argued that it was not maintainable because it was not accompanied by the original arbitration agreement or a duly certified copy. She also contended that the arbitration clause contemplated the appointment of two arbitrators, whereas the applicants had sought the appointment of a sole arbitrator.

Examining the Kerala High Court Scheme for Appointment of Arbitrators, the court noted that an arbitration request must ordinarily be accompanied by the original arbitration agreement or a duly certified copy. It also requires an affidavit showing that the conditions for invoking Section 11 of the Arbitration and Conciliation Act had been satisfied.

The court observed that the Scheme uses the expression "may reject it" in relation to non-compliant requests. It held that this indicates rejection is discretionary rather than mandatory.

Referring to the Arbitration and Conciliation Act, the court observed that an arbitration agreement can exist in different forms. It is not confined to a conventional written agreement signed by both parties.

"Therefore, an arbitration agreement can be inferred in a variety of scenarios including communication through electronic means which provide a record of the agreement. It can even be inferred from exchange of statement of claims and defence. Consequently, it is not the mandate of the Act that the arbitration agreement shall be inevitably in the usual format of an agreement in writing.", the court noted. 

The court held that interpreting the expression "duly certified copy" as requiring certification by a public authority would be inconsistent with the scheme of the Arbitration and Conciliation Act.

It observed that arbitration agreements are often private documents and cannot ordinarily be certified by a public authority. The court held that authenticity could instead be ensured by requiring an affidavit confirming that the copy is a true copy of the original, explaining the reason for non-production of the original and producing a copy attested by the party or counsel.

The court also noted that the surviving partner had not disputed the genuineness of the arbitration agreement or contended that the partnership deed relied on by the applicants was fabricated.

"In such a situation, if the arbitration request is rejected for the sole reason that the original of the arbitration agreement or a duly certified copy thereof has not been produced, the same would result in travesty of justice.", the court observed.

The court rejected the objection that the arbitration clause was unenforceable because it provided for an even number of arbitrators. Relying on the Supreme Court's decision in M.M.T.C. Ltd. v. Sterlite Industries (India) Ltd., it held that an arbitration agreement does not become invalid merely because it specifies an even number of arbitrators.

The court also rejected the contention that the pending criminal case barred arbitration. It held that the pendency of criminal proceedings was not, by itself, a ground to reject the arbitration request. It observed that arbitration proceedings would not impede the criminal prosecution.

The court allowed the arbitration request. It directed the Kerala High Court Arbitration Centre to nominate two arbitrators from Panel III in accordance with the arbitration clause.

The court clarified that its findings on production of the original arbitration agreement or a duly certified copy were confined to the requirement under the Kerala High Court Scheme for Appointment of Arbitrators, 1996.

For Petitioners: Advocates P Martin Jose, P Prijith, Thomas P Kuruvilla, R Githesh, Ajay Ben Jose, Manjunath Menon, Anna Linda Eden, Harikrishnan S, Anavadya Sanil Kumar, Anjali Krishna and Abhinav P.S

For Respondents: Advocates Mohan Jacob George, P.V Parvathy, Reena Thomas, Nigi George, Ananthu V Lal, Brahma R.K, Antony Thomas Mohan and Fabi Abdul Latheef