IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
AR NO. 115 OF 2022
APPLICANT:
P&C PROJECTS PVT. LTD., P&C TOWERS, 2ND FLOOR,
140, PERUNDURAI ROAD,ERODE, 638011, REPRESENTED
BY ITS GENERAL MANAGER (CONTRACTS) AND AUTHORISED
SIGNATORY MR. M.A. SYED SIRAJUDEEN.
BY ADV SRI.GEORGE POONTHOTTAM
SMT. NISHA GEORGE
RESPONDENT:
M/S. INKEL LIMITED,DOOR NO.7/473 ZA-5 AND 6
AJIYAL COMPLEX, POST OFFICE ROAD,KAKKANAD, COCHIN
682030,REPRESENTED BY ITS MANAGING DIRECTOR
SHRI. A.MOHAN LAL.
BY ADV P.U.SHAILAJAN
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION
ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Sathish Ninan, J.
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Arbitration Request No.115 of 2022
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Dated this the 10th day of August, 2022
ORDER
The respondent floated a tender for the purpose of development and construction of the project - Cochin Cancer Research Centre. The applicant was the successful tenderer and was awarded the work. Annexure A3 is the agreement entered into between the parties. The General Conditions of Contract formed part of the agreement.
There arose disputes between the parties. The contract was terminated. There were litigations in relation thereto. The same are not being adverted to herein since it may not be necessary for disposal of the present Arbitration Request.
2. According to the applicant, there are various heads of claims against the respondent. Clause 25 of Annexure A3 agreement provides for resolution of disputes by arbitration. Alleging non-cooperation on the Arbitration Request No.115 of 2022 -: 2 :- part of the respondent for appointment of Arbitrator, the petitioner has moved this Court by way of this Arbitration Request.
3. The respondent has filed a detailed counter affidavit refuting the applicant's claims.
4. Heard Sri.George Poonthottam, the learned senior counsel on behalf of the petitioner and Sri.P.U.Shailajan, the learned counsel for the respondents.
5. The existence of an arbitration clause in the agreement between the parties, providing for dissolution of disputes by way of arbitration is not disputed.
However, according to the respondent, the petitioner is yet to raise the final bill, on consideration of which alone it could be concluded as to what are the disputes, if any, between the parties. The disputes are to be referred to the Disputes Redressal Committee as Arbitration Request No.115 of 2022 -: 3 :- stipulated under Clause 25. It is only thereafter that the question of proceeding for arbitration arises, is the contention.
6. The matter was earlier heard on 25.07.2022.
Sri. P.U.Shailajan, learned counsel for the respondent had submitted that, if a final bill is submitted, necessarily the other steps contemplated in terms of Clause 25 of Annexure A3 Agreement including reference of disputes to the Disputes Redressal Committee by the Managing Director shall be done without any delay.
7. The petitioner denied the contention of the respondent and claimed that a final bill was already submitted. However, the petitioner agreed to submit a final bill and also sought that the matter be referred to the Disputes Redressal Committee without any further delay and in the event of non settlement of the disputes, the matter be referred to arbitration.
Arbitration Request No.115 of 2022 -: 4 :-8. The petitioner has thereafter filed an additional affidavit dated 01.08.2022. Along with the additional affidavit, the petitioner has produced Annexure A-27 the final bill, with a request to refer the matter to the Disputes Redressal Committee and to settle the disputes.
9. Sri.P.U.Shailajan, the learned counsel for the respondent submits that, Bill No.8 submitted by the petitioner was returned for curing defects and that the same is not yet represented. He further assures this Court that steps shall be taken immediately, for consideration of Annexure A27, and in case of dispute, the matter will be referred to the Disputes Redressal Committee by the Managing Director in terms of Clause 25 of Annexure A3 Agreement. Sri.George Poonthottam, the learned senior counsel for the petitioner submits that the Bill No.8, if not already resubmitted, will be Arbitration Request No.115 of 2022 -: 5 :- resubmitted immediately.
10. In the light of the above, let the final bill be considered and the dispute, if any, on the same, be referred to the Disputes Redressal Committee and steps be taken in furtherance thereof as provided for under Clause 25 of Annexure A3 agreement.
The Arbitration Request is disposed of as above without prejudice to the rights of the petitioner to seek for appointment of an Arbitrator at a later stage, if so warranted.
Sd/-
Sathish Ninan, Judge vdv APPENDIX OF AR 115/2022 PETITIONER ANNEXURES Annexure-A1 TRUE COPY OF THE NOTICE INVITING TENDER DOCUMENT NO. NIT/INKEL/KIIFB/ 2018-19/010 DATED 05.04.2018.
Annexure-A2 TRUE COPY OF THE LETTER OF ACCEPTANCE OF TENDER NO. INKEL/CE/LOA/HEALTH/ 2018/037 DATED 13.06.2018.
Annexure-A3 TRUE COPY OF THE AGREEMENT NO.
04/KIIFB/INKEL/2018-19 DATED 06.08.2018 ENTERED BETWEEN THE RESPONDENT AND THE APPLICANT. Annexure-A4 TRUE COPY OF THE LETTER RELATED TO BILL DATED 03.06.2019 ISSUED BY THE PETITIONER. Annexure-A4(a) TRUE COPY OF THE LETTER RELATED TO BILL DATED 17.06.2019 ISSUED BY THE PETITIONER. Annexure-A5 TRUE COPY OF THE LETTER RELATED TO LABOUR UNION ISSUES DATED 10.09.2018 ISSUED BY THE PETITIONER.
Annexure-A5(a) TRUE COPY OF THE LETTER DATED 11.09.2018 ISSUED BY THE PETITIONER.
Annexure-A5(b) TRUE COPY OF THE LETTER DATED 17.03.2020 ISSUED BY THE PETITIONER.
Annexure-A6 TRUE COPY OF THE LETTER RELATED TO DRAWINGS DATED 01.09.2018 ISSUED BY THE PETITIONER. Annexure-A6(a) TRUE COPY OF THE LETTER DATED 06.07.2019 ISSUED BY THE PETITIONER.
Annexure-A6(b) TRUE COPY OF THE LETTER DATED 16.08.2019 ISSUED BY THE PETITIONER.
Annexure-A7 TRUE COPY OF THE LETTER DATED 24.09.2018 ISSUED BY THE PETITIONER.
Annexure-A8 TRUE COPY OF THE LETTER WITH RESPECT TO OVERALL DELAY EVENTS DATED 28.03.2019 ISSUED BY THE PETITIONER.
Annexure-A8(a) TRUE COPY OF THE LETTER DATED 30.05.2019 ISSUED BY THE PETITIONER.
Annexure-A8(b) TRUE COPY OF THE LETTER DATED 04.07.2019 ISSUED BY THE PETITIONER.
Annexure-A8(c) TRUE COPY OF THE LETTER DATED 10.07.2019 ISSUED BY THE PETITIONER.
Annexure-A8(d) TRUE COPY OF THE LETTER DATED 18.11.2019 ISSUED BY THE PETITIONER.
Annexure-A8(e) TRUE COPY OF THE LETTER DATED 25.06.2020 ISSUED BY THE PETITIONER.
Annexure-A8(f) TRUE COPY OF THE LETTER DATED 15.09.2020 ISSUED BY THE PETITIONER.
Arbitration Request No.115 of 2022 -2- Annexure-A8(g) TRUE COPY OF THE LETTER DATED 08.01.2021 ISSUED BY THE PETITIONER.
Annexure-A9 TRUE COPY OF THE LETTER DATED 11.10.2018 ISSUED BY THE PETITIONER.
Annexure-A9(a) TRUE COPY OF THE LETTER DATED 16.10.2018 ISSUED BY THE PETITIONER.
Annexure-A10 TRUE COPY OF THE LETTER DATED 13.07.2020 ISSUED BY THE PETITIONER.
Annexure-A10(a) TRUE COPY OF THE LETTER DATED 27.07.2020 ISSUED BY THE PETITIONER.
Annexure-A10(b) TRUE COPY OF THE LETTER DATED 18.07.2020 ISSUED BY THE PETITIONER.
Annexure-A11 TRUE COPY OF THE LETTER DATED 10.08.2020 ISSUED BY THE PETITIONER.
Annexure-A11(a) TRUE COPY OF THE LETTER DATED 10.08.2020 ISSUED BY THE PETITIONER.
Annexure-A11(b) TRUE COPY OF THE LETTER DATED 18.08.2020 ISSUED BY THE PETITIONER.
Annexure-A11(c) TRUE COPY OF THE LETTER DATED 20.08.2020 ISSUED BY THE PETITIONER.
Annexure-A11(d) TRUE COPY OF THE LETTER DATED 25.07.2020 ISSUED BY THE PETITIONER.
Annexure-A11(e) TRUE COPY OF THE LETTER DATED 29.07.2020 ISSUED BY THE PETITIONER.
Annexure-A12 TRUE COPY OF THE LETTER DATED 23.11.2018 ISSUED BY THE PETITIONER.
Annexure-A12(a) TRUE COPY OF THE LETTER DATED 09.03.2019 ISSUED BY THE PETITIONER.
Annexure-A12(b) TRUE COPY OF THE LETTER DATED 23.07.2019 ISSUED BY THE PETITIONER.
Annexure-A12(c) TRUE COPY OF THE LETTER DATED 24.07.2019 ISSUED BY THE PETITIONER.
Annexure-A12(d) TRUE COPY OF THE LETTER DATED 10.07.2019 ISSUED BY THE PETITIONER.
Annexure-A12(e) TRUE COPY OF THE LETTER DATED 20.07.2020 ISSUED BY THE PETITIONER.
Annexure-A12(f) TRUE COPY OF THE LETTER DATED 23.11.2018 ISSUED BY THE PETITIONER.
Annexure-A12(g) TRUE COPY OF THE LETTER DATED 25.06.2020 ISSUED BY THE PETITIONER.
Annexure-A13 TRUE COPY OF THE LETTER DATED 11.06.2020 ISSUED BY THE RESPONDENT.
Annexure-A14 TRUE COPY OF THE LETTER DATED 23.07.2020 ISSUED BY THE RESPONDENT.
Annexure-A15 TRUE COPY OF THE LETTER DATED 15.09.2020 ISSUED BY THE PETITIONER.
Arbitration Request No.115 of 2022 -3- Annexure-A16 TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 24.09.2020 BETWEEN THE PETITIONER AND RESPONDENT.
Annexure-A17 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 26.12.2020 ISSUED BY THE RESPONDENT. Annexure-A18 TRUE COPY OF THE LETTER DATED 04.01.2021 ISSUED BY THE PETITIONER TO THE RESPONDENT. Annexure-A19 TRUE COPY OF THE LETTER DATED 06.01.2021 ISSUED BY THE PETITIONER TO THE RESPONDENT. Annexure-A20 TRUE COPY OF THE LETTER DATED 08.01.2021 ADDRESSED TO THE MEMBER SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT ISSUED BY THE PETITIONER.
Annexure-A21 TRUE COPY OF THE LETTER DATED 18.01.2021 ISSUED BY THE RESPONDENT.
Annexure-A22 TRUE COPY OF THE JUDGMENT DATED 26.04.2021 IN W.P(C) NO.2200 OF 2021 PASSED BY THIS HON'BLE COURT.
Annexure-A23 TRUE COPY OF THE JUDGMENT DATED 13.10.2021 IN W.A. NO. 905 OF 2021 PASSED BY THIS HON'BLE COURT.
Annexure-A24 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT OF INDIA DATED 13.4.2022 IN SLP (C) NO.5672 OF 2022.
Annexure-A25 TRUE COPY OF THE LETTER DATED 11.02.2022 ISSUED BY THE PETITIONER TO THE RESPONDENT. Annexure-A26 TRUE COPY OF THE LETTER DATED 15.03.2022 ISSUED BY THE LAWYER ON BEHALF OF THE RESPONDENT. Annexure-A27 TRUE COPY OF THE REQUEST GIVEN BY THE ASSISTANT MANAGER OF THE PETITIONER COMPANY TO THE RESPONDENT DATED 30.07.2022.
RESPONDENT ANNEXURES Annexure R1(a) True copy of the Government order No.GO(Rt)No.6/2017/H and FWD dated 4.1.2017 Annexure R1(b) True copy of the tripartite agreement between M/s.INKEL Ltd, Health and Family Welfare Department and Kerala Infrastructure Investment Fund Board (KIIFB) dated 29.7.2017 Annexure R1(c) True copy of the Hindrance Register maintained at the site Annexure R1(d) True copy of the letter dated 10.3.2020 submitted by the applicant Annexure R1(e) True copy of the report submitted by Green Lab Industrial and Environmental Solutions (Pvt.) Ltd on 21-22 November 2019 Arbitration Request No.115 of 2022 -4- Annexure R1(f) True copy of the report of the semi destructive core test on RC columns conducted by Bureau Veritas, an NABL Accredited Lab Annexure R1(g) True copy of the letter dated 25.6.2020 issued by the applicant along with the test lists Annexure R1(h) True copy of the letter dated 29.11.2018 issued by the respondent to the applicant Annexure R1(i) True copy of the letter dated 6.12.2018 issued by the respondent to the applicant Annexure R1(j) True copy of the letter dated 6.3.2019 issued by the respondent to the applicant Annexure R1(k) True copy of the letter dated 8.4.2019 issued by the respondent to the applicant Annexure R1(L) The true copy of the letter dated 3.5.2019 issued by the respondent to the applicant Annexure R1(m) True copy of the letter dated 20.6.2019 issued by the respondent to the applicant Annexure R1(o) true copy of the letter dated 22.7.2019 issued by the respondent to the applicant Annexure R1(p) True copy of the letter dated 5.8.2019 issued by the respondent to the applicant Annexure R1(q) True copy of the letter dated 22.11.2019 issued by the respondent to the applicant Annexure R1(r) True copy of the letter dated 23.7.2020 issued by the respondent to the applicant Annexure R1(s) True copy of the W.P(C)No.2200/2021 dated 27.1.2021 filed by the applicant (without documents) before this Honourable Court Annexure R1(t) True copy of the counter affidavit dated4.2.2021 in W.P(C) No.2200/2021(without documents) filed by teh respondent before this Honurable Court Annexure R1(u) True copy of the additional counter affidavit dated 22.3.2021 in W.P(C)No.2200/2021 (without documents) filed by the respondent before this Honourable Court Annexure R1(v) True copy of the appeal memorandum dated 1.6.2021 in W.A.No.905/2021 filed by the applicant before this Honourable Court Annexure R1(w) True copy of the petition filed by the applicant in CMA(Arb.)No.546/2021 before the Commercial Court, Ernakulam dated 18.10.2021 Annexure R1(x) True copy of the counter affidavit filed by this respondent in CMA(Arb)No.546/2021 dated 27.10.2021 before the Commercial Court, Ernakulam Arbitration Request No.115 of 2022 -5- Annexure R1(x)(i) True copy of the additional counter affidavit filed by this respondent in CMA(Arb)No.546/2021 dated 1.11.2021 before the Commercial Court, Ernakulam Annexure R1(y) True copy of the memo submitted by the applicant in CMA(Arb.)No.546/2021 before the Commercial Court, Ernakulam dated 29.10.2021 Annexure R1(z) True copy of the order dated 20.11.2021 in I.A.
Nos.2 and 3 of 2021 in CMA(Arb.) No.546 of 2021 of the Commercial Court, Ernakulam Annexure R1(za) True copy of I.A.No.16/2021 in CMA(Arb.) No.546/2021 filed by the applicant before the Commercial Court, Ernakulam dated 2.11.2021 Annexure R1(Zb) The true copy of calculation appended along with Annexure -A19 letter No.P&C/CCRC- SITE/2020-21/236 dated 06.01.2021.