IN THE HIGH COURT OF KERALA AT ERNAKULAM
AR.No. 9 of 2010()
1. R.GEORGE PEREIRA, GEORGE MICHAEL
... Petitioner
Vs
1. ST.JOSEPH'S INTERNATIONAL ACADEMY,
... Respondent
For Petitioner :SRI.K.L.VARGHESE (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :30/11/2010
O R D E R
K.T.SANKARAN, J.
------------------------------------------------------
Arbitration Request NO. 9 OF 2010
-----------------------------------------------------
Dated this the 30th day of November, 2010
O R D E R
The respondent and the applicant entered into Annexure A3
agreement for the construction of a school building. Disputes arose
between the parties. According to the applicant, a balance amount
of Rs.22,12,087/- was due from the respondent.
2. Clause 17 of Annexure A3 agreement reads as follows:
“(17) If there is any dispute relating to any matter
regarding the construction of the building or any
matter related to this contract, the Manager,
St.Joseph’s International Academy, Kollam will be
the sole arbitrator for this purpose and his
decisions shall be final, and the second party will
have no right to challenge this decision in the
court of law.”
3. The applicant sent a letter providing a panel of three
persons and requesting the respondent to select one among them as
arbitrator. The respondent sent a reply without selecting any of the
ARBITRATION REQUEST NO.9 OF 2010
:: 2 ::
nominee arbitrators. The respondent suggested appointment of two
Civil Engineers, one by each party. The parties appointed their
respective nominee Engineer. Unfortunately, the Engineer
nominated by the applicant passed away in a road accident.
Thereafter, the applicant filed A.R.No.25 of 2007 under Section 11(6)
of the Arbitration and Conciliation Act, 1996, for the appointment of
an arbitrator. A.R.No.25 of 2007 was disposed of as per Annexure
A1 order dated 11.10.2007, appointing Sri.E.K.Muralidharan, Retired
District and Sessions Judge as the Arbitrator.
4. The respondent did not appear when A.R.No.25 of 2007
was taken up for hearing and Annexure A1 order was passed in their
absence. A Review Petition was filed by the respondent, which was
allowed and the order dated 11.10.2007 was recalled. As per
Annexure A2 order dated 8.5.2009 in A.R.No.25 of 2007, again
Sri.E.K.Muralidharan, Retired District and Sessions Judge was
appointed as the Arbitrator. Various contentions were raised by the
respondent. Paragraph 8 of the order dated 8.5.2009 is extracted
below:
“8. The provisions contained in sections 12 and
13 of the Arbitration and Conciliation Act incorporate
ARBITRATION REQUEST NO.9 OF 2010
:: 3 ::
grounds for challenge and the challenge procedure
against and in respect of arbitrators will reveal that
partiality and bias or circumstances giving rise to
justifiable doubts regarding the impartiality and
independence can be valid grounds for challenging the
appointment given to a certain persons as arbitrator. At
the same time, a party should not be allowed to wriggle
easily out of agreements entered into by them with open
eyes. In the instant case it is seen that the applicant
had agreed to the appointment of a person in the service
of the opposite party as an arbitrator in the event of
disputes. That being the position I would have been
ordinarily reluctant to accept the opposition of the
applicant to the appointment of the nominated arbitrator
on ground of bias and partiality. After all, it is a quasi
judicial function which is being discharged by the
arbitrator whose proceedings will be regulated by the
provisions of the Arbitration and Conciliation Act. His
award will be subjected to judicial scrutiny though on
limited grounds and to a limited extent. But in the
instant case I am not inclined to dismiss the arbitration
request and to appoint the nominated arbitrator as the
arbitrator for resolving the disputes which have
admittedly arisen between the parties because it is seen
from Annexures A4 and A5 that the respondent also
became agreeable to the idea of the disputes between
the parties being resolved by persons other than the
ARBITRATION REQUEST NO.9 OF 2010
:: 4 ::
arbitrator nominated under the agreement. Annexures
A6 and A7 will show that the parties had nominated an
Engineer each and were willing to have the disputes
between them resolved by a joint perusal of the relevant
records by these two Engineers. To this extent, in my
opinion the respondent has waived his right to insist that
the arbitrator to be appointed has to be the arbitrator
nominated under the agreement. Moreover, in my
opinion no prejudice whatsoever will be occasioned to
the respondent by appointing a Retired Judicial Officer
known for his learning and integrity as the arbitrator for
resolving the disputes which admittedly subsist.
Therefore without deciding the issue whether
appointment of the nominated arbitrator will be vitiated
due to reasons of bias and partiality I allow the
arbitration request and appoint Sri.E.K.Muraleedharan,
Retired District and Sessions Judge, presently at
Ernakulam as arbitrator for settling all the claims and
counter claims raised by the applicant and the
respondent as detailed in Annexures A1 to A4 as well as
in the arbitration request. The arbitrator will enter on
arbitration and make and publish his award without
undue delay.”
5. It is submitted that Sri.E.K.Muralidharan, Retired District
and Sessions Judge passed away. The applicant has approached
ARBITRATION REQUEST NO.9 OF 2010
:: 5 ::
this Court again under Section 11(6) of the Arbitration and
Conciliation Act for appointment of an arbitrator. Though notice was
served by special messenger on the respondent, there is no
appearance for the respondent.
6. Learned counsel for the applicant suggested that
Smt.Sreelatha Devi, Retired District and Sessions Judge, may be
appointed as the Arbitrator.
Taking into account the facts and circumstances of the case,
the Arbitration Request is allowed. Smt.Sreelatha Devi, Retired
District and Sessions Judge is appointed as the Arbitrator for
resolving the disputes between the applicant and the respondent
touching upon Annexure A3 agreement. The Arbitrator is free to fix
her fee.
(K.T.SANKARAN)
Judge
ahz/