IN THE HIGH COURT OF KERALA AT ERNAKULAM
AR No. 40 of 2006()
1. M/S.P.C.THOMAS & CO.,
... Petitioner
Vs
1. THE SUPERINTENDING ENGINEER,
... Respondent
2. THE EXECUTIVE ENGINEER,
For Petitioner :SRI.P.JACOB VARGHESE
For Respondent :SRI.SHAFIK M.ABDULKHADIR,SC,LAKSHADWEEP
The Hon'ble the Chief Justice MR.V.K.BALI
Dated :10/01/2007
O R D E R
V.K. BALI, C.J.
-------------------------------
A.R.Nos.40, 41, 42, 43, 44, 45,
46, 47, 48, 49, 50, 51 & 52 of 2007
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Dated, this the 10th day of January, 2007
ORDER
V.K.Bali,C.J.(Oral)
By this common order I propose to dispose of 13 connected
matters as not only the questions but the parties involved in all
these matters are common. The bare minimum facts that need a
necessary mention have been extracted from A.R.No.40 of 2006.
2. The applications have been filed under Section 11 of the
Arbitration and Conciliation Act, 1996, hereinafter referred to as
the Act of 1996, seeking appointment of a sole arbitrator to
adjudicate upon all claims of the petitioner that are preferred
against the respondents in Annexure C notice of arbitration
request dated 3.6.2006; in terms of Annexure A arbitration
agreement on the subject construction contract. It is the case of
the petitioner that disputes arose between the applicant and the
respondents in the matter of execution of contract work
No.Works-1/2/2000-01-A.B.1/2281 dated 6.12.2000, Agreement
No.32.KLP/2000-01 dated 6.12.2000. Clause 25 of the general
A.R.No.40/2006, etc. 2
conditions of the contract provides for resolving of disputes
through the process of arbitration. Accordingly the applicant
requested for appointment of an arbitrator. The respondents did
not appoint arbitrator and therefore these applications under
Section 11 of the Act of 1996.
3. Pursuant to the notice issued by this Court the
respondents have entered appearance and filed counter affidavit.
The Court may not look into the details of the counter affidavit as
the only ground on which the request for arbitration is sought to
be contested is that as per the clause in the agreement
reference to the arbitration could be sought within 30 days from
the date of arising of the dispute, but in the present case the
request to arbitration has been made after more than two years.
This plea raised on behalf of the respondents has to be repelled
as the petitioner first in point of time had filed a writ petition
bearing No.W.P.(C) 35216 of 2004 which was disposed of by this
Court by judgment dated 19th October, 2005. The writ was
allowed with regard to undisputed bills and the money with
A.R.No.40/2006, etc. 3
regard to the undisputed bills had to be paid within three months.
The short order passed by the learned Single Judge disposing of
the writ petition on 19th October, 2005 is reproduced below:
“The petitioner Company is a Government
contractor, which did certain works for the
respondents. Feeling aggrieved by the delay from
the part of the respondents to honour the bills raised
by it, this Writ Petition is filed.
2. The respondents have filed a counter
affidavit, disputing the claim of the petitioner. In
paragraph 8 of the counter affidavit, it is submitted
as follows:
“The final bill of certain works of the contractor could
not be paid yet for want of revised sanction and
deposit from the client department and sanction of
extension of time. The claims will be settled
immediately on receipt of deposit from the client
department and EOT sanction to all works.”
In view of the above submission, the respondents
are directed to settle the claims of the petitioner
Company regarding the undisputed bills within three
months from the date of receipt of a copy of this
judgment. The claim of the petitioner for payment
of other bills, is kept open for which, he may work
out his remedies before the appropriate forum.”
4. Thereafter the petitioner had to file a contempt petition
which was disposed of by this Court as meanwhile the petitioner
A.R.No.40/2006, etc. 4
has also filed application for appointment of arbitrator. It would
transpire that dispute arose only with regard to disputed bills. In
so far as undisputed bills are concerned, they have already been
made over to the petitioner. In the circumstances, it cannot be
said that the petitioner took more than two years for seeking
arbitration. The dispute could only be with regard to disputed
bills and it is only with regard to the said bills that arbitration can
be sought. So far as admitted bills are concerned, there is no
dispute and only after payment of the said bills the question
arose with regard to the entitlement of the petitioner to get the
remaining amount as claimed by him and disputed by the
respondents. Thus the only contention raised by the
respondents opposing the arbitration is repelled.
5. The request for arbitration is allowed. From the panel of
arbitrators submitted by the petitioner Justice K.Narayana Kurup
a former Judge of this Court, is appointed as the sole Arbitrator
in all these cases to render an award in accordance with law.
Before I may part with this order I may note the contention of
A.R.No.40/2006, etc. 5
the learned counsel for the respondents that some building
experts would be required to properly determine the dispute.
This Court only orders that if the parties may make such a
request to the Arbitrator he may have assistance of a building
expert before he renders the award. The Arbitrator may also
consider the experts to be nominated by the parties.
These applications are disposed of accordingly.
V.K. BALI,
CHIEF JUSTICE.
vns