Merlin Rubinston vs Chief General Manager on 20 September, 2007

Kerala High Court
Merlin Rubinston vs Chief General Manager on 20 September, 2007




AR No. 26 of 2007()

                      ...  Petitioner


                       ...       Respondent




                For Petitioner  :SRI.A.T.ANILKUMAR

                For Respondent  :SRI.MATHEWS K.PHILIP,SC, BSNL

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :20/09/2007

 O R D E R
                        PIUS C. KURIAKOSE,J.
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                           A.R. No.26 of 2007
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                     Dated: 20th September, 2007


The Proprietor of M/s.Judeson Engineering Sales and Service,

an authorised dealer of M/s.Greaves Cotton Ltd. was awarded with six

works of “providing comprehensive maintenance of E/A sets for

various T.E.buildings” under the BSNL – TESD-II, Trivandrum, TESD-

Kottarakkara, TESD-Kollam and TESD- Alleppey, TESD-Trivandrum-I

and TESD-Trivandrum III respectively. Annexure A are true

photostat copies of the relevant pages of the agreement executed

between the petitioner and the respondents and clause 25 therein is

an arbitration clause. The petitioner claims that he has satisfactorily

completed the work as per the specifications in the agreement. But

the respondents, namely, the Chief General Manager, Kerala

Telecommunications, Trivandrum (R1), the Chief Engineer, Kerala

Zone, BSNL, Trivandrum (R2), the Superintending Engineer,

Electrical, BSNL, Trivandrum (R3) and the Executive Engineer,

Telecom Electrical Division, BSNL, Trivandrum (R4) have delayed

disbursement of the remuneration due to the petitioner in a arbitrary

manner and in violation of the agreements executed between the

petitioner and the respondents. The petitioner points out that as

A.R.No.26/07 – 2 –

requested by the respondents, he has extended the contract period

by further four months on the same conditions. The petitioner

stopped the work only after a letter in that regard was given by the

respondents. The petitioner has already issued the amount for two

bills for the same rate quoted by the petitioner after completion of

the work. There is no case for the respondents that the petitioner has

not completed the work as per the specifications in the agreement or

that the work done by the petitioner is substandard. It is on account

of the request of the respondents that the petitioner did the work for

a further period of six months. The petitioner relies on Annexure B

counter affidavit filed by the respondents before this court in

W.P.C.No.7098 of 2005 initiated by the petitioner to contend that

even according to the respondents, the petitioner’s remedy is to

invoke the provisions of the Arbitration Act. Annexure C is the copy of

the judgment in that Writ Petition whereby this court relegated the

petitioner to remedies under the Arbitration Act. Annexure D is copy

of the request made by the petitioner invoking the arbitration clause.

The petitioner points out that the contention raised through the reply

notice Annexure E is only one of limitation. The above contention,

according to the petitioner is unsustainable. On these averments, the

A.R.No.26/07 – 3 –

petitioner prays in this application under Section 11(5) of the

Arbitration Act read with clause 2(1) and 2(2) of the Scheme of

Appointment of Arbitrators by the Chief Justice of the High Court of

Kerala that an independent and impartial arbitrator be appointed for

settling the disputes between the petitioner and the respondents.

2. A counter affidavit has been filed by the respondents wherein

the only serious contention seen raised is that the contention that the

petitioner’s claim to have the issue settled through arbitration is

barred by limitation.

3. Heard both sides.

4. I am of the view that the question whether the arbitration

proceedings are barred by limitation itself can be made an issue in

the arbitration. Under these circumstances, the Arbitration Request

will stand allowed. Sri.N.D.Joy, Advocate, Neelamkavil Bhavan,

28/3227, 1st Cross Cheruparambath Road, Kadavanthara, Ernakulam

already empanelled by this court is appointed as Arbitrator for

resolving the disputes between the petitioner and the respondents

raised through Annexure D. It is open to the respondents to raise the

contentions before the Arbitrator that the proceedings are barred by

limitation also.

A.R.No.26/07 – 4 –

The Arbitrator will enter on reference and pass award at the


srd                               PIUS C.KURIAKOSE, JUDGE

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