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IAAP/21/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
PETN.
UNDER ARBITRATION ACT No. 21 of 2011
With
PETN.
UNDER ARBITRATION ACT No. 22 of 2011
To
PETN.
UNDER ARBITRATION ACT No. 24 of 2011
=========================================================
M/S
H P ZALA THRO.NATWARSINHJI H ZALA - Petitioner(s)
Versus
RAMKY
INFRASTRUCTURE LTD THRO.CHAIRMAN/ MANAGING & 1 - Respondent(s)
=========================================================
Appearance
:
MRCHIRAGBPATEL for
Petitioner(s) : 1,
MR SS BELSARE for Respondent(s) : 1 -
2.
MR.VIJAY B SETH for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 15/07/2011
ORAL
ORDER
These
applications have been filed seeking appointment of Arbitrator under
Section 11 of the Arbitration and Conciliation Act (the Act) in
following background.
Since
facts are similar in all cases, it may be noted from those arising
from Arbitration Petition No.21 of 2011. Petitioner had agreed to
undertake certain work on behalf of the respondent under an
agreement pursuant to which Work Order was issued on or around
1.1.2009. The parties agreed to set of conditions titled as “General
Terms and Conditions For Piece Rate Workers”. In addition
thereto, there was a separate terms of agreement titled as ‘Special
Conditions of Contract’ also signed by the parties.
Clause
No.4 of the Special Conditions of Contract provided as under:
“4. Any
dispute arising in regard to the work in the site will be settled by
mutual discussions with the Engineers in charge of both RIL and
yourself. On failure of settlement of any such dispute will be
finally settled under the Jurisdiction Courts at Ahmedabad, Gujarat”.
In
Clause 37 of the ‘General Terms and Conditions of Piece Rate
Workers’, there was a reference to certain nature of disputes being
resolved through mode of arbitration.
Clause
No.37 reads as under:
“37. In case
of any disputes regarding meaning and intent of any specifications,
terms and conditions etc. the same shall be referred to the Managing
Director of M/s.Ramky Infrastructure Ltd. whose decision shall be
final and binding on both the parties”.
During
execution of the work by the petitioner for the respondent, several
disputes arose. Petitioner vide communication dated 10.10.2010
raised number of issues demanding total Compensation of
Rs.52,10,083/- with interest from the respondent. Since there was no
response to the demand notice dated 10.10.2010, petitioner sent yet
another letter dated 2.2.2011 to the Managing Director of the
respondent-Company and stated that:
“4. We
submit that due to the above position being now created and you are
now requested to look into the matter that the same are settled and
paid to us For the purpose of settlement you are requested to hold
the meeting for resolving the difference between the parties and in
doing so, we will be highly obliged”.
Treating
the said notice dated 2nd February, 2011 as a notice for
appointment of arbitrator on the premise that Clause 37 of the
Contract makes dispute between the parties compulsorily arbitrable,
the petitioner has moved present petitions seeking appointment of
arbitrator. In response to the notice, respondent has filed reply
primarily contending that Clause 37 of the contract pertained to
limited nature of disputes and disputes raised by the petitioner in
the two notices would not be covered by clause-37.
Having
heard learned counsel for the parties. At the outset, I may notice
that there was no notice for appointment of arbitrator by the
petitioner issued to the respondent. Counsel for the petitioner,
however, submitted that the communication dated 2.2.2011 should be
treated as one seeking reference to the arbitrator since it was
addressed to the Managing Director who under clause 37 was to
arbitrate the disputes between the parties. I am unable to agree to
such a contention. In the notice, there is no mention that the
Managing Director should resolve the disputes through arbitration.
Even
if one were to accept such a contention, I do not find that present
application for appointment of the arbitrator can be accepted. This
is in view of my reading of Clause 37 of the contract and the nature
of disputes, the petitioner seeks arbitration of.
In
his demand notice dated 10.10.2010, the petitioner had raised
disputes with respect to different nature of works undertaken by the
petitioner for and on behalf of the respondent. For example, it is
alleged that pipeline, alignment etc. were not made available, that
logistics were not provided in time and such similar other disputes.
Primarily on this basis, the petitioner contended that it’s
machinery remained idle for long time which loss should be
compensated.
With
this brief familiarity of the nature of disputes, if one peruses
closely the clause No.37 of the agreement, it would appear that
clause No.37 pertains only to disputes regarding meaning and intent
of any specifications, terms and conditions, etc. For obvious
reasons, disputes noted above do not pertain either to meaning,
intent of any specifications or the terms and conditions of the
contract.
Counsel
for the petitioner, however, put much stress on the expression
‘etc.’ part of this clause. To my mind, same must be understood as
to include items similar to the ones preceding the word etc. and not
to unrelated issues. The concept of a reading clause ejusdem
generis is well known in legal jurisprudence.
Counsel
for the petitioner, however, submitted that respondent did not raise
such a contention in response to notice dated 2.2.2011. That by
itself would not mean that arbitrator under Section 11 should be
appointed despite objection from the respondent and despite finding
that there is no provision in the agreement between the parties
requiring that disputes to be referred for arbitration instead of
resorting Court proceedings. Facts in other cases are similar and
not necessary to record them separately.
In
the result, all applications are dismissed.
(AKIL
KURESHI, J.)
(ashish)
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