IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
AR NO. 54 OF 2022
PETITIONER/S:
M/S. OM CONSTRUCTION,SR NO 47/1, HOUSE NO.1240
VIGHNAHAR PARK, SUNITA NAGAR, WADGAON SHERI
PUNE - 411014 REPRESENTED BY ITS MANAGING PARTNER
MR. SAMEER PRABHAKAR GAIKWAD.
BY ADVS.
MADHU RADHAKRISHNAN
NELSON JOSEPH
M.D.JOSEPH
DEEPAK ASHOK KUMAR
RESPONDENT/S:
1 ENGINEER IN CHIEF
DIRECTORATE OF CONTRACT ADMINISTRATION AND
MANAGEMENT MILITARY ENGINEER SERVICES
ARMY HEAD QUARTERS, KASHMIR HOUSE, RAJAJI MARG
NEW DELHI - 110011.
2 CHIEF ENGINEER (NW) KOCHI
MILITARY ENGINEER SERVICES, KATARIBAGH, NAVAL
BASE (PO),KOCHI - 682004.
3 GARRISON ENGINEER (FORT) KOCHI,MILITARY ENGINEER
SERVICES, FORT KOCHI - 682001.
BY ADV S.KRISHNA
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION
ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Sathish Ninan, J.
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Arbitration Request No.54 of 2022
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Dated this the 14th day of June, 2022
JUDGMENT
The petitioner entered into a contract with the respondents with regard to the work of "Repair for replacement of Fresh Water Distribution Pipelines". Exts A1 to A3 are the documents relating to the contract. According to the petitioner, the work was completed before the agreed date of completion and they sought for issuance of completion certificate. However, the respondents took the stand that the work as agreed has not been completed and 20% of the work still remains. There arose dispute between the parties. Though the contract between the parties contains an arbitration clause and though the petitioner sought for appointment of an arbitrator in terms thereof, the respondent have not co-operated. It is on the said contention that the petitioner has approached this Court under Section 11 of the Arbitration and Conciliation Act, 1996. Arbitration Request No.54 of 2022 -: 2 :-
2. The respondents have filed a statement denying the averments in the arbitration petition, on its merits.
3. I have heard the learned counsel Sri.Madhu Radhakrishnan on behalf of the petitioner and Smt.S.Krishna, the learned Central Government Standing Counsel.
4. That the contract in question contains an arbitration clause, is admitted. There is dispute between the parties regarding the stage of the work, as to whether it is completed in terms of the contract or not. It is a matter for consideration by the arbitrator. The respondents have placed on record a panel of arbitrators constituted by the Ministry of Defence. It is submitted by the learned counsel for the respondents that an arbitrator from the said panel could be appointed. The learned counsel for the petitioner submits that the nominees of the respondent may not be Arbitration Request No.54 of 2022 -: 3 :- appointed since the petitioner would have concerns over a possible bias.
5. I deem it only appropriate that an independent arbitrator be appointed to arbitrate into the dispute between the parties.
6. In the light of the above, the Arbitration Request is ordered as hereunder :-
(a) Rtd. Justice. Sunil Thomas,68/1288A, St.Benedict's Extension Road, Kochi - 682018, is provisionally nominated as the Sole Arbitrator to adjudicate upon the disputes between the parties arising out of Annexure A1 to A3.
(b) A copy of this order shall be communicated to the learned Arbitrator by the Advocate of the applicant within a period of one week from today. A copy of the order shall also be forwarded to the learned Arbitrator by the Registry in his address.
(c) The Arbitrator is requested to forward his Arbitration Request No.54 of 2022 -: 4 :- statement of disclosure under Section 11(8) r/w. Section 12(1) of the Act 3 of 2016. The disclosure statement shall be placed before this Court for confirmation of the appointment of the Arbitrator.
(d) The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017.
(e) The arbitration costs and fees shall be shared equally.
(f) The interim order of stay granted by this Court on 05.04.2022 will not be operative any further.
Sd/-
Sathish Ninan, Judge vdv APPENDIX OF AR 54/2022 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE TENDER ACCEPTANCE LETTER DATED 25.06.2020 Annexure A2 TRUE COPY OF THE GENERAL CONDITIONS OF CONTRACTS FOR LUMPSUM CONTRACTS.
Annexure A3 TRUE COPY OF THE ERRATA TO THE GENERAL CONDITIONS OF CONTRACT IAFW-2249 Annexure A4 TRUE COPY OF THE LETTER DATED 22.09.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
Annexure A5 TRUE COPY OF THE LETTER DATED 23-9-2021 ISSUED BY THE 3RD RESPONDENT.
Annexure A6 TRUE COPY OF THE REPLY STATEMENT DATED 06.10.2021 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.
Annexure A7 TRUE COPY OF THE ARBITRATION INVOKING LETTER DATED 12.10.2021 ISSUED BY THE PETITIONER. Annexure A8 TRUE COPY OF THE REPLY LETTER DATED 29.10.2021 ISSUED BY THE 3RD RESPONDENT. Annexure A9 TRUE COPY OF THE LETTER DATED 01.11.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Annexure R1(a) A true copy of the award of tender dated 25.06.2020 Annexure R1(b) A true copy of the work order dated 10.08.2020 Annexure R1(c) A true copy of the letter dated 18.02.2021 Annexure R1(d) A true copy of the notice dated 21.06.2020 Annexure R1(e) A true copy of the letter dated 09.08.2021 Annexure R1(f) A true copy of the letter dated 20.09.2021 Annexure R1(g) A true copy of the letter dated 01.11.2021 Annexure R1(h) A true copy of the letter dated 08.11.2021 Annexure R1(j) A true copy of the letter dated 18.10.2021 Annexure R1(k) A true copy of the communication dated 29.10.2021 Annexure R1(l) A true copy of the letter dated 02.11.2021 Annexure R1(m) A true copy of the letter dated 18.10.2021 Annexure R1(n) A true copy of the relevant extract of the General Conditions of Contract Annexure R1(o) A true copy of the panel of arbitrators