High Court · 2025

Arb O.P(COM.DIV.) No. 171 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14-07-2025CORAMTHE HON'BLE MR JUSTICE ABDUL QUDDHOSEArb O.P(COM.DIV.) No. 171 of 2025M/s.UNIQUE BUILDERS,Rep by its Partner Mr.N.Sreenivasan No.1369,5th Street Golden Colony, Padi,Chennai- 600 050. Also having registered office at. No.36,D.N.Plaza,2nd Floor, Thiruvallur Salai,Thiruvalluvar Nagar, Mugappair East,Chennai-600037...Petitioner(s)Vs1.The Union Of India,Rept By The General Manager, Southern Railway,Park Town, Chennai-600003.2.The Chief Engineer(Constructions)Office of the Chief Administrative Officer(Construction) Southern Railway,Egmore, Chennai-600003.3.The Deputy Chief Engineer /Tambaram,Construction,Sourthern Railway, Railway Colony,Tambaram-600045...Respondent(s)Arb O.P(COM.DIV.) No. 171 of 2025__________Page 1 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025a.To Appoint an independent and impartial Sole arbitrator to adjudicate the disputes in fast-track procedure by fixing the time frame between the petitioner and the Respondents in terms of the Contract AGREEMENT NO.11/GC/SUB/2008 dated 24.10.2008 as set out under details of claims in Para No. 5 above b.Direct the Respondents to pay the cost of this petition.Arb O.P(COM.DIV.) No. 171 of 2025For Petitioner(s):A.Vikash For P.Subba Reddy K.Aparna DeviFor Respondent(s):M/s.PALANINATHAN CENTRAL GOVERNMENT STANDING COUNSEL FOR RR 1 TO 3 ORDERThis petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (in short “the Act”) seeking for appointment of an Arbitrator by this Court.2. There seems to be a dispute between the petitioner and the respondents arising out of the agreement dated 24.10.2008. The General Conditions of the Contract (GCC), which is applicable to the agreement dated 24.10.2008, contains an arbitration clause. The existence of the arbitration clause is not disputed by the respondents. Under the agreement dated 24.10.2008, the __________Page 2 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025petitioner was appointed as a contractor for the respondents. The petitioner has invoked arbitration in accordance with the arbitration clause contained in the General Conditions of the Contract, which are applicable to the agreement dated 24.10.2008. An Arbitrator was appointed from the panel of Arbitrators maintained by the respondents, who acted upon the reference based on the request made by the petitioner. 3. The petitioner, during the pendency of the earlier arbitration, filed an application under Section 14 of the Act seeking for termination of the mandate of the Arbitrator on the ground that there was an inordinate delay in the passing of the award by the Arbitrator and also on the ground that the respondents had changed the Arbitrator. By order dated 09.10.2015, this Court terminated the mandate of the earlier Arbitrator appointed by the respondents from the panel maintained by them and thereafter, in the same order, this Court substituted the Arbitrator. The substituted Arbitrator passed an arbitral award dated 30.09.2019 and the said arbitral award was challenged by the petitioner in O.P.No.21 of 2020. Prior to the said challenge, the petitioner had earlier filed O.P.No.759 of 2019 under Section 14 of the Act seeking once again to terminate the mandate of the Arbitrator, who had subsequently passed the arbitral award dated 30.09.2019. Since the arbitral award was passed on __________Page 3 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 202530.09.2019, the petitioner sought the permission of this Court to withdraw O.P.No.759 of 2019 and this Court had also permitted the petitioner to withdraw O.P.No.759 of 2019 by its order dated 22.10.2019. O.P.No.21 of 2020 filed by the petitioner challenging the arbitral award dated 30.09.2019 was allowed by this Court on 10.01.2025 by setting aside the arbitral award dated 30.09.2019. The petitioner claims that since the arbitral award dated 30.09.2019 was set aside by this Court through this Court's order dated 10.01.2025 and since the petitioner is the claimant, the petitioner is entitled to file this OP seeking for appointment of an Arbitrator by this Court under Section 11 of the Act. 4. A counter affidavit has been filed by the respondents stating that this petition is not maintainable. According to them, no leave was obtained by the petitioner from this Court, when this Court allowed O.P.No.21 of 2020 through its order dated 10.01.2025 for initiating fresh arbitration. It is also their contention that this petition is barred by limitation.5. The following facts are undisputed:-(a) The agreement dated 24.10.2008, which has to be read in conjunction with General Conditions of the Contract, contains an arbitration clause.__________Page 4 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025(b) The mandate of the earlier Arbitrator appointed by the respondents from the panel of Arbitrators maintained by them was terminated by this Court through this Court's order dated 09.10.2015 passed in O.P.No.426 of 2015.(c) An award dated 30.09.2019 came to be passed by the substituted Arbitrator appointed by this Court on 09.10.2015 in O.P.No.426 of 2015.(d) Even prior to the challenge made to the arbitral award dated 30.09.2019, the petitioner had once again filed a petition in O.P.No.759 of 2019 under Section 14 of the Act seeking for termination of the mandate of the Arbitrator appointed by this Court through this Court's order dated 09.10.2015. The petitioner was permitted to withdraw the said petition due to the fact that an arbitral award dated 30.09.2019 was already passed by the Arbitrator appointed by this Court through this Court's order dated 09.10.2015.(e) By order dated 10.01.2025 passed in O.P.No.21 of 2020, the arbitral award dated 30.09.2019 was set aside by this Court under Section 34 of the Act.(f) The petitioner is the claimant in the arbitration. The petitioner was employed as a contractor by the respondents through an agreement dated 24.10.2008. __________Page 5 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025(g) The claim in excess of Rs.2.5 crores was made by the petitioner against the respondents in the arbitral proceedings which arises out of the agreement dated 24.10.2008. 6. Eventhough the respondents have admitted the existence of the arbitration clause in the agreement dated 24.10.2008, which is the subject matter of the dispute between the parties, they claim that the arbitral claim made by the petitioner is hopelessly barred by limitation. However, as seen from the undisputed facts recorded earlier, on a prima-facie consideration, this Court finds that the petitioner was constrained to file various petitions before this Court and in fact, the mandate of the Arbitrator appointed by the respondents from the panel of Arbitrators maintained by them was also terminated by the orders of this Court and the arbitral award passed by the Arbitrator appointed by this Court was also set aside only recently through this Court's order dated 10.01.2025 in O.P.No.21 of 2020. 7. The limitation issue is a mixed question of fact and law and it cannot be adjudicated in this petition filed under Section 11 of the Act. Being a referral Court and, that too, when it cannot be conclusively established that the claim of the petitioner is barred by limitation, this Court cannot decide the limitation __________Page 6 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025issue in this petition. If at all the respondents are aggrieved by the same, it can be decided only by the Arbitrator appointed by this Court. Therefore, at this stage, the contention of the respondents, as raised through their counter affidavit with regard to maintainability of this petition on the ground of limitation, is rejected by this Court. 8. The petitioner is the claimant in the arbitration. Being a claimant, that too, when the earlier arbitral award dated 30.09.2019 was set aside by this Court on 10.01.2025 only on the ground that there was an inordinate delay on the part of the Arbitrator to pass an arbitral award, on a prima-facie consideration, this Court finds that there is no necessity to obtain leave from this Court to permit the petitioner to initiate fresh arbitration in accordance with law. Anyway, this issue also can once again be adjudicated by the Arbitrator once the parties go for arbitration through an Arbitrator appointed by this Court. Therefore, the said issue is also rejected for the present by this Court.9. For the foregoing reasons, necessarily, this Court will have to appoint an Arbitrator as prayed for in this petition. Accordingly, this petition is allowed as prayed for with the following directions:-__________Page 7 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025(a) This Court hereby appoints Hon'ble Mr.Justice V.Parthiban (Retd.), residing at No.5069, 12th street, Z Block, Anna Nagar, Chennai-40, Mobile No.9444094401, as the Sole Arbitrator to adjudicate the dispute between the petitioner and the respondents arising out the agreement dated 24.10.2008.(b) The Sole Arbitrator appointed by this Court shall be paid remuneration/fees as per the schedule agreed upon by the parties to the dispute.(c) The Arbitrator shall adhere to the provisions of Arbitration and Conciliation Act, 1996. (d) The Arbitrator shall also pass the arbitral award within the stipulated period as prescribed under the Arbitration and Conciliation Act, 1996. (e) The respondents are at liberty to raise all objections including the objections, which have been raised through their counter affidavit filed before this Court, by filing an application under __________Page 8 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025Section 16 of the Act before the Arbitrator, or through their statement of defence filed in the arbitral proceedings. 14-07-2025Index: Yes/NoSpeaking/Non-speaking orderNeutral Citation: Yes/NoRKMTo1.The Union Of India,Rept By The General Manager, Southern Railway,Park Town, Chennai-600003.2.The Chief Engineer(Constructions)Office of the Chief Administrative Officer(Construction) Southern Railway,Egmore, Chennai-600003.3.The Deputy Chief Engineer /Tambaram,Construction,Sourthern Railway, Railway Colony,Tambaram-600045.__________Page 9 of 10. https://www.mhc.tn.gov.in/judis Arb O.P(COM.DIV.) No. 171 of 2025ABDUL QUDDHOSE J.RKMArb O.P(COM.DIV.) No. 171 of 202514-07-2025__________Page 10 of 10.