'Duly Certified Copy' Of Arbitration Agreement Need Not Be Attested By Public Authority: Kerala HC [Read Order]

Kerala : The Kerala High Court has held that the requirement of a "duly certified copy" of an arbitration agreement, under the Scheme for Appointment of Arbitrators by the Chief Justice of the High Court of Kerala, 1996, does not mean that the copy must necessarily be certified by a public authority. 

Justice S.Manu, allowing an arbitration request filed by three partners of a family-run firm against a fourth partner, held that in the case of private arbitration agreements, a copy attested by the parties or their counsel would suffice to satisfy the Scheme, and that courts exercising the limited jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996 ought not to reject such requests over procedural imperfections.

The arbitration request was filed by Bharat Sursingh Asher, Rajesh Girdhardas Asher and Hemangi B. Asher, partners of M/s.Jairam and Sons, a registered partnership firm functioning since 1982 with its principal place of business at Willingdon Island, Kochi, against Rupa Praveen Asher, another partner in the family firm. The petitioners sought nomination of an Arbitrator in terms of Clause 22 of the reconstituted partnership deed dated 29.01.2009. The dispute arose after the death of the respondent's husband in 2014 and of another partner in 2017, following which, according to the petitioners, the respondent adopted a non-co-operative and obstructive approach that prevented reconstitution of the firm and delayed statutory filings. The petitioners alleged that the respondent issued legal notices raising baseless allegations of mismanagement and eventually approached the police, leading to registration of a crime against them at the Harbour Police Station in 2024. After a notice dated 14.08.2025 invoking the arbitration clause and proposing two retired Judges of the High Court went unanswered, the petitioners approached the Court under Section 11.

The respondent resisted the request on three principal grounds. First, that the arbitration request was not accompanied by the original arbitration agreement or a duly certified copy as mandated by the 1996 Scheme, and was therefore liable to be rejected without going into the merits. Second, that the arbitration clause in the partnership deed contemplated two Arbitrators, one nominated by each side, with an Umpire in case of disagreement, and that a prayer for appointment of a sole Arbitrator was inconsistent with both the clause and Section 10 of the Arbitration and Conciliation Act, relying on Narayan Prasad Lohia v. Nikunj Kumar Lohia, Citibank, N.A. v. TLC Marketing PLC and Enercon (India) Limited v. Enercon Gmbh. Third, that the request lacked bonafides and was a device to defeat the criminal prosecution pending against the petitioners, with the respondent alleging that she had been unjustly excluded from the firm and denied her due share of profits.

The petitioners' Senior Counsel countered that certification by a public authority could not be read into the Scheme, since arbitration agreements are ordinarily private documents falling under Sections 74 and 75 of the Evidence Act, corresponding to Section 74 of the Bharatiya Sakshya Adhiniyam, for which no public authority is competent to issue a certified copy. It was submitted that the original of the partnership deed was in the custody of the respondent's late husband and, after his death, with the respondent herself, and that a true copy had been produced along with a supporting affidavit. On the number of Arbitrators, it was argued that Section 10 is a machinery provision and not a condition of validity, and that the Court could, if necessary, nominate two Arbitrators consistent with the clause even though the prayer sought a sole Arbitrator, relying on M.M.T.C. Ltd. v. Sterlite Industries (India) Ltd.

The Court framed the central question as how the expression "duly certified copy thereof" in paragraph 2 of the 1996 Scheme ought to be construed. Noting that Section 7 of the Arbitration and Conciliation Act prescribes no particular form for an arbitration agreement and recognises agreements arising from signed documents, exchanges of correspondence or even an exchange of pleadings, the Court held that reading a mandatory requirement of public certification into the Scheme would run counter to the scheme of Section 7 itself.

"...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 clarified that the Registry may still insist on safeguards where the original or a publicly certified copy is not produced, such as an affidavit affirming that the copy filed is a true copy of the original and explaining the reason for non-production of the original, particularly where, as here, the original was stated to be in the custody of the opposite party. Since the respondent did not dispute the genuineness of the partnership deed or the arbitration clause it contained, the Court found no purpose would be served in insisting on a publicly certified copy.

"...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."

On the scope of rejection under paragraph 6 of the Scheme, the Court noted that the provision uses the word "may", vesting discretion in the Chief Justice or the designated authority even where the requirements of paragraph 2 are not strictly complied with. Emphasising the object of arbitration as a mechanism for effective and speedy dispute resolution with only limited judicial intervention, the Court was critical of any approach that would allow arbitration requests to be defeated at the threshold over curable procedural defects.

"The sublime intention of the law of arbitration is to promote settlement of disputes through the alternative mechanism of arbitration in a more effective and speedy manner. Limited intervention by the courts at all stages is an acknowledged feature of arbitration. Termination of arbitral proceedings in the prenatal stage by the referral courts exercising constricted jurisdiction whimsically, citing procedural imperfections, is therefore undesirable."

On the objection regarding the number of Arbitrators, the Court held, following M.M.T.C. Ltd. v. Sterlite Industries (India) Ltd., that the validity of an arbitration agreement does not depend on the number of Arbitrators specified, since Section 10 is a machinery provision distinct from Section 7, which alone governs validity. The Court noted the petitioners' fallback submission that, if the clause were held to require two Arbitrators, the Court could nominate two rather than a sole Arbitrator, and held that the prayer for a sole Arbitrator was accordingly no ground to reject the request.

The Court also rejected the contention that pendency of the criminal case registered against the petitioners barred arbitration, holding that arbitral proceedings would not impede the criminal investigation or any resultant prosecution, and that the rival contentions on the merits of the dispute, including allegations of exclusion from profits and mismanagement, were matters for the Arbitrators to decide on evidence and fell outside the limited inquiry permissible under Section 11(6A) of the Act.

Allowing the arbitration request, the Court directed the Kerala High Court Arbitration Centre to nominate two Arbitrators from Panel III in terms of the arbitration clause in the partnership deed, to adjudicate all disputes between the parties arising from the deed, including questions of jurisdiction and limitation raised by either side. The Registry was directed to communicate the order to the Arbitration Centre within ten days, with the Centre required to inform the Arbitrators and obtain a signed Form 3 under Rule 20(4) of the Kerala High Court (Arbitration Centre) Rules, 2025, within a further week. Fees and costs were directed to be governed by Rules 27 and 28 of the 2025 Rules, with the Arbitrators left free to seek expert assistance if required during the proceedings. The Court clarified that its observations on production of the arbitration agreement were confined to the requirements of the 1996 Scheme.

Appearances: Sri.S.Sreekumar, Senior Counsel, instructed by Sri.P.Martin Jose, Sri.P.Prijith, Sri.Thomas P.Kuruvilla, Sri.R.Githesh, Shri.Ajay Ben Jose, Sri.Manjunath Menon, Smt.Anna Linda Eden, Shri.Harikrishnan S., Smt.Anavadya Sanil Kumar, Smt.Anjali Krishna and Shri.Abhinav P.S., for the Petitioners; Shri.Mohan Jacob George, assisted by Smt.P.V.Parvathy, Smt.Reena Thomas, Smt.Nigi George, Shri.Ananthu V.Lal, Shri.Brahma R.K., Shri.Antony Thomas Mohan and Smt.Fabi Abdul Latheef, for the Respondent.

Case Title: Bharat Sursingh Asher & Ors. v. Rupa Praveen Asher, AR No.292 of 2025

[Read Order]