IN THE HIGH COURT OF KERALA AT ERNAKULAM
AR No. 26 of 2007()
1. MERLIN RUBINSTON, AGED 47 YEARS,
... Petitioner
Vs
1. CHIEF GENERAL MANAGER,
... Respondent
2. THE CHIEF ENGINEER,
3. SUPERINTENDING ENGINEER,
4. THE EXECUTIVE ENGINEER,
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
ORDER
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
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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.
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The Arbitrator will enter on reference and pass award at the
earliest.
srd PIUS C.KURIAKOSE, JUDGE
