P.B. Suresh Kumar, J.

1. The petitioners own apartments in an apartment complex called Panjos Gardens. It is stated by the petitioners that they have sustained loss to the tune of Rs. 55,26,560/- on account of the illegal and unauthorized conduct of the first respondent, the association of owners of the apartments in the apartment complex. It is also stated by the petitioners that the annual general body meeting of the first respondent held on 02.03.2019 for election of the new Managing Committee of the association was not one properly convened. It is further stated by the petitioners that some of the office bearers elected in the said general body meeting are disqualified from contesting in the election to the offices of the first respondent association. According to the petitioners, the aforesaid disputes are disputes to be resolved by recourse to arbitration as provided for in the Bye-laws of the first respondent association. It is alleged by the petitioners that though the petitioners have called upon the respondents to take necessary steps to resolve the disputes aforesaid by recourse to arbitration, they are not acting upon the said demand of the petitioners. The petitioners, therefore, seek appointment of arbitrators for resolution of the disputes raised by them in Annexures A2 and A3 notices, in this proceedings under Section 11 of the Arbitration and Conciliation Act, 1996.

2. A counter affidavit has been filed by the seventh respondent on his behalf and also on behalf of the first respondent association. The seventh respondent is the Vice-president of the first respondent association. The seventh respondent has stated, among others, in the counter affidavit that the petitioners are not members of the first respondent association. It is also stated by the seventh respondent that the disputes raised by the petitioners were the subject matter of O.S. No. 219 of 2012 on the files of the Munsiff Court, Ernakulam and that therefore the arbitration request is not maintainable.

3. Annexure A1 is the Bye-Laws of the first respondent association. Clause 26 of Annexure A1 Bye-Laws reads thus:

If any dispute concerning constitution of the Committee of the business of the Association (other than a dispute regarding disciplinary action taken by the Committee against a paid servant of the Association) arises:

(a) among members, past members and persons claiming through members, past members and deceased members or

(b) between a member, past member and person claiming through a member, past member or deceased members and the Association any Committee or any officer, agent or servant of Association; or

(c) between Association or its Committee and any past officer, past agent, or past servant or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased servant or the Association.

Shall be referred to three arbitrators decided by all the members and the decision of the majority arbitrators shall be the final.

It is evident from the extracted clause that the disputes between the first respondent and its members are to be resolved by recourse to arbitration. As noted, the contention of the respondents is that the petitioners are not members of the first respondent association and that insofar as the claim is one that relating to the subject matter of the suit between the parties, the arbitration request is not maintainable.

4. In the light of sub-section 6-A of Section 11 of the Arbitration and Conciliation Act, the Apex court has held in Duro Felguera S.A. v. Gangavaram Port Ltd. [(2017) 9 SCC 729] [LQ/SC/2017/1495] that the legislative policy and purpose is essentially to minimize the intervention of courts at the stage of appointing the arbitrator and that the power of the court has now therefore been restricted only to the examination of the question as to whether there exists an arbitration agreement between the parties, nothing more, nothing less. In the light of the sub-section 6-A of Section 11 of theand the decision of the Apex court referred above, I am of the view that insofar as the existence of the arbitration clause is not disputed, the contentions raised by the respondents are contentions to be considered by the arbitrator.

In the result, the arbitration request is allowed and (1) Adv. Sreelal Warriar, Warriar & Co., Advocates, Arbitrators and Mediators, Warriam Road, P.B. No. 5000, Kochi 682 016, (2) Adv. Bindu Sreekumar, Room No. 334, KHCAA Golden Jubilee Chamber Complex, Kochi - 31 and (3) Adv. Sri. P.S. Sunil, 1/125, Puthenveettil, MLA Road, Udayamperoor - 682 307 are appointed provisionally as the Arbitrators to resolve the dispute between the parties. The Registry is directed to obtain disclosure statement under Section 11(8) of the Arbitration and Conciliation Act, 1996 from the Arbitrators and place the matter before the court for confirmation of the appointment of the Arbitrators. The Registry shall retain the original of the disclosure statement and append a copy of the same to the order.