IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 641 of 2002(B)
1. M/S. PACE A REGISTERED FIRM
... Petitioner
Vs
1. UNION OF INDIA, REP. BY EXECUTIVE
... Respondent
2. CHIEF ENGINEER, CENTRAL PUBLIC WORKS
3. K.K. MUTREJA, ARBITRATOR,
4. DR.P.C.DANGAY, ARBITRATOR,
For Petitioner :SMT.M.R.SREELATHA
For Respondent :SRI.JOHN VARGHESE, ASSISTANT SG
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :20/11/2008
O R D E R
S. SIRI JAGAN, J.
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O.P.No.641 OF 2002
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Dated this the 20th day of November, 2008
JUDGMENT
The petitioner is a Contractor, who undertook certain works
on behalf of the 1st respondent. Disputes arose between the
petitioner and the 1st respondent in respect of the contract, which
was referred for arbitration, under the Arbitration and Conciliation
Act, 1996, to the 4th respondent Arbitrator. Before the Arbitrator,
the petitioner filed their claim. The 1st respondent raised a
counter claim for an amount of Rs.2,40,188/-. After the
arbitration proceedings, the 4th respondent passed Ext.P3 award
dated 29.5.2001, in which an amount of Rs.75,000/- was
awarded to the petitioner with interest. Subsequently, a doubt
arose as to the future interest payable which was again taken up
with the Arbitrator and the Arbitrator by Ext.P4 issued
clarification dated 17.7.2001 regarding future interest also.
Thereafter, by Ext.P5 agreement dated 10.9.2001, the petitioner
and the 1st respondent mutually decided to settle all the claims in
respect of the disputes referred to the Arbitrator, by paying an
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amount of Rs.92,217/- to the petitioner in full and final
settlement of the whole dispute. Thereafter, by Ext.P6
proceedings dated 29.11.2001, the 2nd respondent again
appointed the 3rd respondent as an Arbitrator to decide and
make an award regarding certain claims shown in the
statement attached therewith, which are the very same claims
in the counter claim filed by the 1st respondent before the 4th
respondent Arbitrator. Pursuant thereto, the 3rd respondent
Arbitrator issued Ext.P7 notice dated 4.12.2001 directing the
petitioner to appear before the Arbitrator for further
proceedings in the matter. The petitioner is challenging
Exts.P6 and P7.
2. The contention of the petitioner is that the 2nd
respondent had no jurisdiction to appoint another Arbitrator to
decide the matter since the very same dispute had already
been decided by the 4th respondent. As is evident from the list
of claims attached to Ext.P6, the claims represent the counter
claim made by the 1st respondent before the 4th respondent
mentioned in Ext.P2. Under Section 33(4) and (5) of the
Arbitration and Conciliation Act, if any party wanted the
Arbitrator to make an additional arbitraral award as to claims
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presented in the arbitraral proceedings, but omitted in the
arbitraral award, the aggrieved party has to make a request to
the same Arbitrator within thirty days from the receipt of the
arbitraral award and the Arbitrator has to consider the request
which if found to be justified, an additional arbitraral award
shall be made by the Arbitrator within sixty days from the
receipt of such request. In view of the said provision of law,
the action of the 2nd respondent in appointing a new Arbitrator
the 3rd respondent to decide the very same issue which has
already been decided by the 4th respondent is without
jurisdiction, is the contention raised. Further the petitioner
would submit that in view of Ext.P5 settlement entered into
between the petitioner and the 1st respondent in full and final
settlement of all disputes referred to the Arbitrator, there is no
scope for reference for any dispute to an Arbitrator.
3. I have considered the rival contentions in detail.
4. A counter affidavit has been filed on behalf of
respondents 1 and 2 which is conspicuous by the absence of
any answers to the petitioner’s contentions. Admittedly, the
dispute now referred to the 3rd respondent contained in Ext.P6
is the counter claim raised by the 1st respondent before the 4th
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respondent, which has ended in Ext.P3 award. Therefore, if
respondents 1 and 2 had any case that the 4th respondent had
omitted to consider that claim, the course open to them was to
approach the 4th respondent himself for making an additional
award within the time limit prescribed in Section 33(4) of the
Arbitration and Conciliation Act. Admittedly, that has not been
done. Instead, by Ext.P6, the very same dispute had been
referred for adjudication to a new Arbitrator namely, the 3rd
respondent. The same is clearly against the provisions of the
Arbitration Conciliation Act and therefore unsustainable. Even
otherwise, after having chosen to settle the entire dispute with
the petitioner by entering into Ext.P5 agreement in full and
final settlement of claims between the parties, it is not open to
the 2nd respondent to rake up the same again by appointing
another Arbitrator. Therefore, Exts.P6 and P7 are clearly
without jurisdiction. Accordingly, the same are quashed.
The original petition is allowed as above.
S. SIRI JAGAN, JUDGE
Acd
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