IN THE HIGH COURT OF KERALA AT ERNAKULAM
AR No. 19 of 2007()
1. M.N.B.NAIR,
... Petitioner
Vs
1. THE FACT ENGINEERING AND DESIGN
... Respondent
For Petitioner :SRI.K.L.VARGHESE
For Respondent :SRI.A.M.SHAFFIQUE
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :01/02/2008
O R D E R
PIUS C. KURIAKOSE, J.
A.R. NO. 19 OF 2007
DATED THIS THE 1st February 2008
ORDER
This application has been filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996 seeking appointment of
an Arbitrator in accordance with law by a Contractor to the
respondent company in respect of the work of “Implementation
of Hazardous Waste landfill for FACT – Primary and Secondary
Leachate Collection Layers” under Work Order No.32180-C0506
dated 13-12-2005 which was followed by execution of a formal
agreement. It is submitted that as per the contract, the work
costing Rs.13,55,000/- had to be completed within four months
from the date of handing over the site, whereas the respondent
was not able to handover the site for more than an year. In the
meanwhile whatever materials to be supplied had been supplied
by the applicant. Undisputedly, the respondent could not hand
over the site or give facilities to do the work since another
agency who had to do part of the job had not done so. In the
A.R.NO. 19/2007 -2-
meanwhile, the cost of construction increased disproportionately
high and the applicant sought for enhancement of rates. Though
the respondent convened a meeting and gave an impression that
enhancement of rates would be recommended ultimately, the
request for enhancement of rates was turned down and the
contract was terminated followed by encashment of Bank
Guarantee amount of Rs.1,35,500/- and withholding of final bill
amount of Rs.5,83,060/-. The disputes having thus arisen are
liable to be settled in arbitration. Article 41 of the Proforma
Contract is an arbitration clause. Article 41 which is extracted in
the application would show that the Chairman & Managing
Director of the respondent Company is the nominated
Arbitrator. Since the respondent was not prepared to refer the
dispute in arbitration in that regard, the applicant has invoked
the appointment procedure contemplated by Section 11(6) of the
Arbitration and Conciliation Act. Even though several chances
were given to the respondent for filing counter affidavit, till this
moment the counter affidavit has not been filed. The averments
in the application stand established.
A.R.NO. 19/2007 -3-
The result is that the Arbitration Request will stand
allowed. Sri. S.Sainudheen, the retired District & Sessions Judge
is appointed as Arbitrator to settle the disputes between the
parties which are subject matters of Annexure-A1 claim notice.
The Arbitrator will also settle the counter claims, if any, which
were raised by the respondent through their claim statement.
The Arbitrator will enter on reference at his earliest and pass
award without undue delay.
PIUS C. KURIAKOSE, JUDGE
ks
A.R.NO. 19/2007 -4-
This application has been filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996 to appoint an Arbitrator in
accordance with law by the applicant, who is Contractor to the
respondent company in respect of the work of “Implementation
of Hazardous Waste landfill for FACT – Primary and Secondary
Leachate Collection Layers” under Work Order No.32180-C0509
dated 19-1-2006 which was followed by execution of a formal
agreement. It is submitted that as per the contract, the work
costing Rs.14,93,500/- had to be completed within four months
form the date of handing over the site, whereas the respondent
was not able to handover the site for more than a year. In the
meanwhile whatever materials to be supplied had been supplied
by the applicant. Undisputedly, the respondent could not hand
over the site or give facilities to do the work since another
agency who had to do part of the job had not done so. In the
meanwhile, the cost of construction increased disproportionately
A.R.NO. 19/2007 -5-
high and the applicant sought for enhancement of rates. Though
the respondent convened a meeting and gave an impression that
enhancement of rates would be recommended ultimately, the
request for enhancement of rates was turned down and the
contract was terminated followed by encashment of Bank
Guarantee amount of Rs.1,49,3,50/- and withholding of final bill
amount of Rs.1,46,296/-. The disputes having thus arisen are
liable to be settled in arbitration. Article 41 of the Proforma
Contract is an arbitration clause. Article 41 is extracted in the
application which would show that the Chairman & Managing
Director of the respondent Company is nominating Arbitrator.
Since the respondent was not prepared to refer the dispute in
arbitration in that regard, the applicant has invoked the
appointment procedure contemplated by Section 11(6) of the
Arbitration and Conciliation Act. Even though several chances
were given to the respondent for filing counter affidavit, till this
moment the counter affidavit has not been filed. The averments
in the application stands established.
The result is that the Arbitration Request will stand
A.R.NO. 19/2007 -6-
allowed. The retired District & Sessions Judge…….. is appointed
as Arbitrator to settle the dispute between the parties which is
subject matter of Annexure-A1 claim notice. The Arbitrator will
also settle the counter claims, if any, which were raised by the
respondent through in their claim statement. The Arbitrator will
enter on reference at his earliest and pass the award without
undue delay.
PIUS C. KURIAKOSE, JUDGE
ks
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