MISC. Petition No. 380 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:18196 CMP No. 380 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI CIVIL MISC. PETITION NO. 380 OF 2024 BETWEEN: J M SWAMY AGED 52 YEARS NO.28, 8TH B MAIN RAJAMAHAL VILAS EXTENSION BANGALORE-560080 …PETITIONER (BY SRI. HARIS CHANDRA REDDY P., ADVOCATE) AND: 1. GOVERNMENT OF INDIA CENTRAL PUBLIC WORK DEPARTMENT REP. BY ITS CHIEF EXECUTIVE ENGINEER BCD III CPWD KENDRIYA SADAN KORAMANGALA BANGALORE-560034 2. THE CHIEF ENGINEER SZ-111 CPWD, KENDRIYA SADAN KORAMANGALA, BANGALORE-560034 Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA …RESPONDENTS
Legal Reasoning
(BY SRI. SHIVAKUMAR,CGSC FOR R1 & R2 ) THIS CIVIL MISC. PETITION IS FILED UNDER SEC 11, SUBSECTIONS (5), (6) AND (8) READ WITH SECTION 12 OF THE ARBITRATION AND CONCILIATION ACT, 1996 READ WITH THE RULES FRAMED BY THE HON’BLE HIGH COURT OF - 2 - NC: 2025:KHC:18196 CMP No. 380 of 2024 (A) AND KARNATAKA IN NOTIFICATION NO LCA/1/402/1996 DATED 13-11-1996 PRAYING THIS HONBLE COURT A) TO PASS AN APPROPRIATE ORDER FOR APPOINTMENT OF INDEPENDENT AND IMPARTIAL SOLE ARBITRATOR AS PER THE PETITIONER REQUESTS UNDER THE PROVISIONS OF SECTION 11 (6) SUB- SECTION (C) OF THE ARBITRATION AND CONCILIATION (AMENDMENT)ACT, 2019 TO ADJUDICATE THE DISPUTES/CLAIMS BETWEEN THE PARTIES OF THE WORK OF IP TESTING LAB CONSTRUCTION OF BUILDING FOR INCLUDING ELECTRICAL WORKS AT CPRI CAMPUS, BANGLALROE AGREEMENT NO. 18/SE/BCD1/2016-17.DATED 15-7-2016 B)TO PASS AN APPROPRIATE ORDER AS PER THE CLAUSE 25 OF GCC AND ALSO (AMENDMENT)ACT, 2019 BY APPOINTING INDEPENDENT AND IMPARTIAL SOLE ARBITRATOR UNDER SECTION 11 (8) OF THE ACT FOR SETTLEMENT OF DISPUTES/CLAIMS BETWEEN THE PARTIES AS PER THE CONDITIONS OF CONTRACT (ANNEXURE-A). THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL ORDER This Civil Miscellaneous Petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for brevity ‘ the Act, 1996) for the appointment of the sole Arbitrator to resolve the dispute between the parties to the petition in terms of Clause-25 of the General Conditions of the Contract (for brevity ‘GCC’) vide Annexure-A. - 3 - NC: 2025:KHC:18196 CMP No. 380 of 2024 2. Brief facts leading rise to the filing of this petition are as follows: The respondents issued a tender notification inviting tenders. The petitioner participated in the tender process. The work order was issued to the petitioner vide work order dated 11.07.2016. The agreement came to be entered into between the parties. The work was commenced on 02.08.2016 and was to be completed by 01.05.2017. The work was completed in the extended period of contract on 26.04.2019, as per the time extended by the respondents without penalty. The petitioner submitted certain claims arising out of and in connection with the contract to the respondents, vide letter dated 26.09.2022, for the settlement of claims/disputes as per Clause-25 of the General conditions of the contract. The respondents have not accepted the petitioner’s claims. The claims of the petitioner were referred to the Superintending Engineer vide his communication dated 14.10.2022, for settlement of - 4 - NC: 2025:KHC:18196 CMP No. 380 of 2024 claims, but there was no reply from the Superintending Engineer. As per Clause-25 of General Conditions of contract, the petitioner referred the claims to the Chief Engineer, CPWD, Bangalore vide communication dated 04.11.2022 for setting all claims. The Chief Engineer rejected the claims of the petitioner. The petitioner preferred an appeal to the Dispute Redressal Committee (for brevity ‘DRC’) as per Clause 25(i) of GCC for settlement, vide communication dated 22.11.2022. The DRC has not acted in time to settle the disputes between the parties as per Clause 25 of the GCC. The petitioner requested the Chief Engineer vide communication dated 10.04.2023, for the appointment of an impartial independent Arbitrator for settlement of disputes between the parties as per the provisions of the Act of 1996. The Chief Engineer, CPWD, in its letter dated 01.05.2023 proposed 5 names of the retired officers of the CPWD for selection of the petitioner as one among them as an Arbitrator. The petitioner nominated Sri. Akhilesh Kumar, as the sole arbitrator. Sri. Akhilesh Kumar, conducted the - 5 - NC: 2025:KHC:18196 CMP No. 380 of 2024 arbitration proceedings by entering the reference, for settlement of disputes between the parties and passed an award dated 01.06.2024 and a correction dated 18.06.2024. The petitioner submitted that claim Nos.7 and 8 though not referred by the Appointing Authority in his reference as per Section 23(3) of the Act of 1996, the petitioner may amend or supplement his claim during arbitration proceedings. Therefore, claim Nos.7 and 8 were beyond the jurisdiction of the arbitral Tribunal. The petitioner sent a letter on 15.06.2024 requesting to refer claims No.7 and 8 to the sole Arbitrator. The respondent rejected the petitioner’s request vide reply dated 25.06.2024. Hence, the petitioner filed this petition to refer the claim Nos.7 and 8 to the Arbitrator in terms of Clause-25 of the GCC. Hence, prays to allow the petition. 3. Despite granting sufficient opportunity, the respondents did not file a statement of objections. Hence, statement of objections is taken as not filed. - 6 - NC: 2025:KHC:18196 CMP No. 380 of 2024 4. Heard the arguments of Sri. Haris Chandra Reddy.P, learned counsel for the petitioner and Sri. Shivakumar, learned Central Government Standing Counsel for respondents. 5. Learned counsel for the petitioner submits that the Arbitrator was appointed and the claim petition was filed before the Arbitrator. He has passed an award, but the arbitrator did not adjudicate claim Nos.7 and 8 on the ground that the Appointing Authority has not referred claim Nos.7 and 8 to the Arbitrator. He submits that there is a dispute regarding claims Nos.7 and 8, and the same has to be adjudicated through an arbitration by appointing an Arbitrator. Hence, prays to allow the petition. 6. Per contra, learned counsel for the respondents does not dispute the arbitration clause, and that the Arbitral tribunal did not entertain claim Nos.7 and 8 in the earlier proceedings on the ground that the Appointing Authority has not referred claim Nos.7 and 8. Hence, he prays to dispose of the petition. - 7 - NC: 2025:KHC:18196 CMP No. 380 of 2024 7. Perused the records, and considered the submissions of the learned counsel for the parties. 8. The point that arises for consideration are as follows: “Whether the petitioner has made out a ground to refer the dispute to the Arbitrator in terms of Clause-25 of the GCC, as per the provisions of Arbitration and Conciliation Act, 1996?” 9. It is not disputed that an agreement was executed between the parties along with the General Conditions of Contract vide Annexure-A. The dispute arises between the petitioner and the respondents. The petitioner approached the respondents officials, but the petitioner’s efforts went in vain. The independent Arbitrator was nominated and has conducted the arbitration proceedings and passed an award dated 01.06.2024 vide Annexure-P8 and correction dated 18.06.2024. The Arbitral Tribunal did not entertain claim - 8 - NC: 2025:KHC:18196 CMP No. 380 of 2024 Nos.7 and 8 on the ground that the Appointing Authority has not referred the claim Nos.7 and 8 in its reference as per Section 23(3) of the Act of 1996. The petitioner may amend or supplement his claim during the arbitration proceedings as claim Nos.7 and 8 remained, and the Arbitral Tribunal did not decide it. 10. The Arbitration clause contemplates that all disputes shall be referred to arbitration, by the sole arbitrator. It refers to an appointing authority, whose role is only to appoint the arbitrator. The Hon’ble Apex Court in the case of State of Goa Vs. Praveen Enterprises reported in AIR 2011 SC 3814 held as follows: “33. The arbitration clause in this case contemplates all disputes being referred to arbitration by a sole arbitrator. It refers to an Appointing Authority (Chief Engineer, CPWD), whose role is only to appoint the arbitrator. Though the arbitration clause requires the party invoking the arbitration to specify the dispute/s to be referred to arbitration, it does not require the appointing authority to specify the disputes or refer any specific disputes to arbitration nor requires the Arbitrator to decide only the referred disputes. It does not bar the arbitrator - 9 - NC: 2025:KHC:18196 CMP No. 380 of 2024 deciding any counter claims. In the absence of agreement to the contrary, it has to be held that the counter claims by the appellant were maintainable and arbitrable having regard to section 23 read with section 2(9) of the Act.” 11. Considering the ratio laid down by the Hon’ble Apex Court in case of Praveen Enterprises (referred supra). It does not bar the arbitrator from deciding claim
Decision
Nos.7 & 8. In view of the above, the petitioner has made out a ground to refer the dispute to the arbitrator. Accordingly, I answer the point for consideration in the affirmative. 12. Hence, I proceed to pass the following: ORDER i. The Civil Miscellaneous Petition is allowed. ii. Learned District Judge Sri. Vishwanath V. Angadi, is appointed as the sole Arbitrator to resolve the dispute between the parties, as per provisions of the - 10 - NC: 2025:KHC:18196 CMP No. 380 of 2024 Arbitration and Conciliation Act, 1996 and the rules. iii. The office is directed to communicate this order to the learned Arbitrator, and the Arbitration and Conciliation Centre, Bengaluru. Sd/- (ASHOK S.KINAGI) JUDGE SKS