Judgment · High Court · 2007

PIUS C. KURIAKOSE, J...........................................................ARBITRATION REQUEST No.1 OF 2007...........................................................DATED THIS THE 25TH JUNE, 2007

O R D E RThis request is submitted by the applicant-contractor under sub-sections (6) and (8) of Section 11 of the Arbitration and ConciliationAct, 1996. The prayer is that the Chief Justice/Designated Judge mayappoint Mr.Justice B.M.Thulasidas, former Judge of this Court, nominated by the applicant as their nominee, as the sole arbitrator toadjudicate upon the disputes and differences which have arisenbetween the applicant and the opposite parties. The 1st opposite partyis the State and the 2nd opposite party is the Superintending Engineer, Public Works Department, National Highways South Circle, Thiruvananthapuram. The work of “CRF Works – Improvements to Kadambanadu-Mannady-Enathu-Ezhamkulam Road in PathanamthittaDistrict” was awarded to the applicant by the 2nd respondent andformal contract agreement was executed between the parties on25.5.2004. The stipulated date for completion of the work was22.7.2005.

Several disputes arose between the parties during thecourse of execution of the work and finally by Annexure-I notice dated19.6.2006, the applicant treated the contract as at an end and calledupon the opposite parties to pay a sum of Rs.34,75,89,178.40 AR.NO.1/07.-2-together with interest, within 30 days. The claims were rejected bythe Executive Engineer under the 2nd opposite party by Annexure-2letter dated 15.7.2006. Invoking the arbitration clause contained inthe agreement, the applicant sent Annexure-3, panel of five names ofindependent and impartial persons of repute (all of them retiredJudges of this Court, one a former Chief Justice of the High Court of Madhya Pradesh) for consideration by the 1st opposite party forappointment of any one among them as the sole arbitrator toadjudicate upon the disputes and differences between the parties. Theapplicant submits that in spite of the elapse of more than two monthsafter Annexure-3 was received by the opposite parties, they neitheragreed upon any person from the panel suggested by the applicant nordid they suggest any alternative panel for the applicant'sconsideration.

Under the above circumstances, the applicantappointed Mr.Justice B.M.Thulasidas, former Judge of this Court astheir nominee-arbitrator and issued Annexure-4 notice calling upon theopposite parties to appoint their nominee-arbitrator under clause 25.3of the Conditions of Contract at the earliest so as to set in motion thearbitral proceedings. The applicant refers to Clause 25.3 (c) of the General Conditions of Contract as well as the special conditions of AR.NO.1/07.-3-contract and submits that if one of the parties failed to appoint itsarbitrator in pursuance of sub-clauses (a) and (b) within 30 days, thenthe Council, Indian Roads Congress should appoint arbitrator on behalfof such defaulting party. Accordingly, the Council, Indian RoadsCongress, New Delhi was called upon to appoint an arbitrator on behalfof the State of Kerala through Annexure-5 notice dated 14.11.2006.There is no response from the Council to Annexure-5 notice. It isunder these circumstances that the arbitration request is filed in this Court by the applicant. Annexure-6 is copy of the arbitration clausewhich is contained in condition No.3 of the Special Conditions of Contract which forms part of the contract agreement.

Detailed counter affidavit has been filed on behalf of the 1stopposite party refuting the various claims of the applicant. However, towards the end of the counter affidavit, it is stated that in case this Court is inclined to appoint Tribunal, one among the two, viz., (1)Mr.Justice T.V.Ramakrishnan, former Judge of this Court; (2)Sri.E.Kurian Mathew, Chief Engineer (Retired), be appointed as thesole arbitrator. But at the Bar, both sides would say that it is ideal tohave both of them together as the Tribunal.

Having considered the rival pleadings and the rival AR.NO.1/07.-4-submissions addressed before me by Mr.Rajiv A. George, learnedcounsel for the applicant and Mr.Shyson P.Manguzha, learnedGovernment Pleader and the relevant statutory provisions as well asjudicial precedents governing the issue, I do not find any reason as towhy the request should not be granted. Accordingly, allowing theapplication I appoint Mr.Justice B.M.Thulasidas, Retired Judge of this Court and Mr.E.Kurian Mathew, Retired Chief Engineer, Kerala PWD,residing at 33/2527-C, Ezhumanthuruthil Madapath Road, Thammanam PO., Kochi-682032, as joint arbitrators who willconstitute the Arbitral Tribunal. The Tribunal will enter on arbitrationand settle the disputes which are subject-matter of this request attheir earliest. The Registry will communicate this order to the Arbitrators. (PIUS C.KURIAKOSE, JUDGE)tgl AR.NO.1/07.-5- AR.NO.1/07.-6-