Kerala High Court
Marymatha Infrastructure Pvt. ... vs State Of Kerala on 23 February, 2021
WP(C).No.13396 OF 2020(Y)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
WP(C).No.13396 OF 2020(Y)
PETITIONER:
MARYMATHA INFRASTRUCTURE PVT. LTD
(FORMERLY MARY MATHA CONSTRUCTION COMPANY)
MARYMATHA SQUARE, ARAKKUZHA ROAD, MUVATTUPUZHA
P.O., ERNAKULAM-686661, REPRESENTED BY ITS MANAGING
DIRECTOR.
BY ADVS.
SRI.P.SHANES METHAR
SRI.P.SHANES METHAR, SC, KCWWFB
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, IRRIGATION
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE SUPERINTENDING ENGINEER,
PROJECT CIRCLE KOLLIKAL, PIRAVOM, ERNAKULAM-686664.
R1-2 BY GOVERNMENT PLEADER SMT.VINITHA.B
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.02.2021, THE COURT ON 23.02.2021 DELIVERED THE FOLLOWING:
WP(C).No.13396 OF 2020(Y)
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P.V.ASHA, J.
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W.P(c) No.13396 of 2020-Y
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Dated this the 23rd day of February, 2021
JUDGMENT
The Writ Petition is filed seeking the following reliefs:
"i. Issue a writ of certiorari or other appropriate writ, order or direction
calling for the original of Ext.P14 and quash the same.
OR
ii. Issue a writ of mandamus or other appropriate writ, order or direction
commanding the respondents that the scope of new adjudicator appointed in terms of
Ext.P14 will be limited to decide the disputes not covered by Ext.P10 and a further
direction that the adjudicator appointed under Ext.P14 has no jurisdiction to re-agitate
the disputes/matters covered by Ext.P10.
iii. Issue a writ of mandamus or other appropriate writ, order or direction
commanding the respondents that the remedy against Ext.P10 shall be only in
accordance with terms of Ext.P1 agreement.
iv. Issue such other appropriate writ order or direction that may be deemed
to be just and equitable in the facts and circumstances of the case."
2. The petitioner is a contractor, who was awarded the work of
construction of a new bridge for diversion of traffic for safety of old barrage at
Bhoothathankettu based on which Ext.P1 agreement was executed on 18.05.2016.
The issue arising in the case relates to the award passed by an adjudicator
WP(C).No.13396 OF 2020(Y)
appointed in terms of the provisions contained in the agreement. The conditions of
contract which forms part of Ext.P1 agreement in clauses 24 to 26 provide that if
the contractor disputes the decision of the Engineer it shall be referred to an
Adjudicator within 14 days; the adjudicator shall give his decision within 28 days
and either party can refer the decision of the Adjudicator to Arbitrator within 28
days and if not referred within 28 days, the adjudicator's decision would be final
and binding. Clause 26 provides for appointment of a new adjudicator in the event
of resignation, death or on agreement by both parties and on disagreement by one
party by the appointing authority.
3. The details regarding the petitions submitted by the petitioner and the
decisions on it by the Adjudicator as stated by the petitioner are as follows: On
04.01.2018 the petitioner submitted Ext.P5 petition before the Adjudicator,
alleging delay in approval, changes in design, extra items, quantity, rate etc. The
2nd respondent filed Ext.P5(A) objection on 30.1.2018 and the adjudicator decided
the issue on 12.2.2018 as per Ext.P5(B). Thereafter, the petitioner submitted
Ext.P6 claim petition on 12.4.2018 and an updated statement Ext.P6(A) on
18.5.2018 and another updated claim statement Ext.P6(B) on 18.6.2018. After the
adjudicator called for objections as per his letter dated 29.06.2018, the 2 nd
respondent filed objection on 15.09.2018. The adjudicator gave Ext.P8 decision on
03.12.2018 which was followed by Ext.P8(A) decision on 15.12.2018. On Ext.P9
updated petition submitted on 12.01.2019, the respondent submitted Ext.P9(A)
objection on 02.03.2019 to which the adjudicator, after calling for supporting
WP(C).No.13396 OF 2020(Y)
documents on 11.04.2019 and 12.04.2019 and after conducting a site visit on
17.12.2019 with intimation to both sides and conducting a hearing on 21.12.2019,
gave his Ext.P10 decision on 20.01.2020.
4. Whileso, the 2nd respondent as per Ext.P11 letter dated 29.01.2020
informed the petitioner that they are appointing another adjudicator to decide the
disputes. The petitioner objected to the same stating that a new adjudicator cannot
be appointed on disputes covered by Ext.P10. However, the 2 nd respondent, as per
Ext.P13 letter dated 13.02.2020 requested the appointing authority to appoint a
new adjudicator. According to the petitioner, the proceedings for appointment of a
new adjudicator was contrary to the provisions contained in the agreement and
even if the decision of the adjudicator is wrong, the remedy available for the
respondent was to move for arbitration and not appointment of a new adjudicator.
As per Ext.P14 letter dated 24.2.2020 the respondent intimated the appointment of
new adjudicator. The petitioner objected to the same as per Ext.P15 letter on
10.3.2020. The Writ Petition was filed at this stage challenging Ext.P14 letter
alleging violation of clause 25.2 and 25.3 of Ext.P1 agreement and that the
respondents cannot ignore Ext.P10 except by way of challenging the same by way
of arbitration proceedings and that the respondents are estopped from appointing a
new adjudicator.
5. The petitioner has also filed an I.A producing Ext.P16 to Ext.P34
documents along with an additional affidavit. It is stated that the Adjudicator was
appointed by the 2nd respondent and that name of the Adjudicator was given in the
WP(C).No.13396 OF 2020(Y)
tender document itself. It is stated that though the Adjudicator had as per Ext.P16
letter dated 05.03.2018 tendered his resignation, he continued at the request of the
2nd respondent as seen from Ext.P17 letter dated 05.04.2018. It is stated that since
the 2nd respondent did not respond to Ext.P6(B) petition submitted by the petitioner
on 18.06.2018, even after mail dated 29.06.2018, the Adjudicator again called for
their reply as per Ext.P18 letter dated 22.09.2018. It is stated that site visit was
conducted by the Adjudicator on 12.10.2018 after intimating the parties as per
Ext.P19 letter dated 11.10.2018. It is stated that the Adjudicator again tendered
resignation as per Ext.P20 letter on 13.11.2018 based on which the 2 nd respondent
informed the Chief Engineer as per Ext.P21 letter dated 14.11.2018. It is stated
that despite this, the 2nd respondent as per Ext.P22 letter dt.19.11.2018, requested
the adjudicator to report the remarks on the points raised by the contractor in its
letter dated 19.11.2018. (However the said letter dated 19.11.2018 is not
produced). It is stated that as per Ext.P23 letter dated 20.11.2018 the adjudicator
expressed his willingness to continue; the adjudicator scheduled the hearing to
23.11.2018, as per Ext.P24 letter dated 22.11.2018 and in that hearing the
adjudicator, as per Ext.P25 letter, requested for extension of time for giving
decision upto 15.12.2018 and thereafter he passed Ext.P26 interim award on
01.12.18 and Ext.P27 award on 03.12.2018. It is stated that as per Ext.P28 letter
dated 08.12.2018 the 2nd respondent had sought for the willingness of the
petitioner on the request of adjudicator for extension of time and the petitioner had
as per Ext.P29 letter dated 10.12.2018 expressed no objection. It is stated that the
WP(C).No.13396 OF 2020(Y)
adjudicator passed the award on some of the disputes on 15.12.2018 and the
petitioner had submitted Ext.P9 updated claim statement on 12.01.2019, as
directed by the adjudicator, to which the respondent filed Ext.P9(A) objection on
02.03.2019. It is stated that the Adjudicator thereafter as per Ext.P31 letter dated
12.04.2019 called for further documents from the 2 nd respondent and the 2nd
respondent had replied to that. It is stated that pursuant to Ext.P32 letter dated
12.12.2019 of the adjudicator proposing site visit on 17.12.2019, the officers of the
2nd respondent and the petitioner were present for the site visit and thereafter in
the hearing conducted on 21.12.19 at the office of the 2 nd respondent officers of
the respondent attended the same as evident from Ext.P34 attendance register. It is
stated that the hearing which was originally fixed on 20.12.2019 as per Ext.P33
notice, was postponed to 21.12.2019 at the request of the 2nd respondent.
6. The learned Senior Government Pleader filed a statement on behalf of
respondents 1 and 2 on 18.08.2020 stating that a Writ Petition is not maintainable
in respect of contractual matters as there are provisions for appointment of
arbitrator/adjudicator in clauses 24, 25 and 26 of General Conditions of Contract.
It was stated that Ext.P14 which is under challenge is only a communication based
on the appointment made by Institution of Engineers (Indian) Kerala State Centre,
Thiruvananthapuram and the order of appointment which was communicated to
the petitioner is not under challenge. It is stated that the appointment was made as
per clause 25 and 26 of Ext.P1. It is stated that on resignation of the adjudicator as
per Annexure A letter dated 13.11.2018, it became necessary to appoint a new
WP(C).No.13396 OF 2020(Y)
adjudicator and since the petitioner expressed disagreement, Adjudicator was
appointed under clause 26.1 by the appointing authority designated in the contract
data. It is stated that on receipt of Ext.P10, the Adjudicator was informed as per
Annexure B letter dated 29.01.2020 that Ext.P10 decision rendered ten months
after the claim petition, on 20.01.2020, was without any written consent to extend
the period of adjudication and the same was not binding on the respondents. It
was stated that he had to give the decision within 28 days of the claim. The
adjudicator was informed that he was being replaced by another Adjudicator. It is
stated that on a claim petition submitted before the Adjudicator after his
resignation, the 2nd respondent, submitted the remarks on 02.03.2019, subject to
the objection regarding the authority of the adjudicator and the adjudicator after
directing production of certain documents as per letter dated 12.04.2019,
communicated Ext.P10 decision as per letter dated 20.01.2020; whereas the
adjudicator had to give a decision on the claim within 28 days of receipt of the
notification of the dispute, as per clause 25.1. It is stated that on the claim
notified on 12.01.2019, a decision of the adjudicator after a period of 28 days is
bad and the adjudicator has failed to fulfill its functions in accordance with the
provisions of the contract. As per Annexure C letter dated 04.02.2020 the 2nd
respondent has requested the Chairman Institute of Engineers to appoint a new
Adjudicator. It was stated that the adjudicator and the writ petitioner had colluded
themselves and prepared Ext.P10 decision in order to favour the petitioner and to
upset public interest. It is further stated that the period of contract expired on
WP(C).No.13396 OF 2020(Y)
31.12.2019 and therefore the period of adjudicator also expired on that day.
Therefore, on that ground also the adjudicator was not supposed to issue Ext.P10
on 20.1.2020 and hence Ext.P10 is without jurisdiction and void.
7. Thereafter a counter affidavit was filed on behalf of the 2 nd
respondent pointing out the subsequent production of Exts.P16 to P34 along with
the additional affidavit filed by the petitioner. It is stated that no hearing was
conducted on 21.12.2019 as the authority of adjudicator was expired by that time
and no extension was granted to the adjudicator. Admitting that e-mail dated
19.12.2019 was received in the office of the Superintending Engineer it is stated
that the adjudicator was informed that time limit was already over; the hearing was
adjourned to 21.12.2019 not because of the inconvenience of the 2 nd respondent,
on the other hand, the Superintending Engineer had informed the adjudicator that
no hearing can be conducted pursuant to the email dated 19.12.2019. In paras.8 to
10 of the counter affidavit it is stated as follows:
"8. It is submitted that Exhibit P33 is a document fabricated for the
purpose of this case as no such notice produced as Exhibit P33, is issued to the
respondents. Evidently, same is not seen issued to the respondent and no endorsement
from any of the officers of the respondents is seen in Exhibit P33. It is further recorded
in the office file to the effect that period of the adjudicator is already expired. It is
further relevant to note that no notice produced as Exhibit P32 is received to the
respondents and none of the authorized officers of the respondents participated in the
so called site visit on 17.12.2019. As per the report submitted by the then
Superintending Engineer Smt.Rosamma Mathew the facts averred relating to the
alleged site visit on 17.12.2019 is with palpable ulterior motives.
9. It is further reported by the then Superintending Engineer that on
21.12.2019 the adjudicator accompanied by some of the contractor's staff came to the
WP(C).No.13396 OF 2020(Y)
office of the 2nd respondent and insisted the Superintending Engineer to give signature
to show that they visited the office and then she signed and given only as an evidence
to show that the erstwhile adjudicator visited the office. The very wording `attendance
in the adjudication sitting in the Chamber of Superintending Engineer, Project Circle,
Piravom on 21.12.2019 at 11.00 A.M' was not there in the paper in which the erstwhile
adjudicator obtained the signature. He simply want the signature by then
Superintending Engineer (In charge) and Executive Engineer (in charge). The
respondents doubts that Exhibit P34 has been fabricated using the signature of the
then Superintending Engineer and the Executive Engineer at the convenience of the
erstwhile adjudicator in collusion with the contractor. Then then Executive Engineer
(in charge) Sri.Basil Paul had also given a statement to the 2 nd respondent to the effect
that though the adjudicator requested the then Superintending Engineer to extent the
time of adjudication, the then Superintending Engineer to extent the time of
adjudication, the then Superintending Engineer had not agreed to the same and when
the request of the erstwhile adjudicator was denied by the then Superintending
Engineer/2nd respondent he requested the Executive Engineer (in charge) to sign in a
paper to show that he was present in the office at that time.
10. It was further reported by Sri. Basil Paul that the erstwhile adjudicator
had purposefully done that and no discussion was held as stated by the petitioner. The
respondent doubts that Exhibit P32 to P34 are fabricated at the convenience of the
erstwhile adjudicator in collusion with the petitioner. It is further significant to note
that no minutes of the meeting was seen prepared in the alleged meeting dated
21.12.2019, itself shows that there was no sitting of the adjudicator done neither on
20.12.2019 nor on 21.12.2019."
8. The petitioner filed a reply affidavit refuting the contentions in the
counter affidavit and the statement. It was stated that despite the fact that the
adjudicator has to give its decision within a period of 28 days, the 2 nd respondent
never submitted its reply on the claim statements within 28 days except in the case
of the first claim in Ext.P5, against which Ext.P5(A) objection was submitted on
30.1.2018 on the 26th day. Ext.P5 decision was given on it on 12.02.2018, after 32
days of submission of the claim. On the second claim Ext.P6 submitted on
WP(C).No.13396 OF 2020(Y)
12.04.2018, the decision Ext.P6(A) was given on 18.06.2018 after 65 days of the
claim. On Ext.P6(B) claim submitted on 18.06.2018, the 2 nd respondent submitted
its objection Ext.P6(C) on the 87th day on 15.09.2018. Decision was rendered on it
as per Ext.P8 on 3.12.2018 after 154 days and Ext.P8(A) decision was given on
15.12.2018, after 165 days. It is stated that the respondents had never raised any
objection regarding the time frame while accepting those decisions till Ext.P10
was issued. It is stated that the respondents had also not raised any complaints
against the adjudicator before any authority and that they are estopped from raising
such contentions at this stage. The petitioner alleged that the respondents are
playing fraud before this Court by way of its contradictory and false statements
and active concealment of material facts in the counter affidavit which amounts to
criminal contempt and therefore proceedings should be taken against the deponent
of the counter affidavit. They reiterated that hearing was conducted on 21.12.2019
in the chambers of the Superintending Engineer and Smt.Rosamma Mathew and
Basil Paul had attended the hearing. It is also stated that Sri Basil Paulose had
participated in the site visit.
9. Heard the learned Senior Counsel Sri Ramesh Babu for the petitioner,
duly assisted by Adv. Sri. Shanes Mather as also the learned Senior Government
Pleader, Sri. K.V. Manojkumar appearing for the respondents.
10. Relying on the judgments of the Apex Court in ABL International Ltd. &
Anr. v. Export Credit Garantee Corporation of India Ltd. & Ors.: (2004) 3 SCC
553 and Noble Resources Ltd. v. State of Orissa & Anr. : (2006) 10 SCC 236:
WP(C).No.13396 OF 2020(Y)
2006 KHC 1325 the learned Senior Counsel argued that there is no blanket ban
against interference under Article 226 of the Constitution of India in contractual
matters. Relying on the judgment in Kailash v. Nanhku: (2005) 4 SCC 480:
KHC 697, Topline Shoes Ltd v. Corporation Bank: (2002)6 SCC 33, it was
argued that the 28 days' period prescribed in clause 25.1, is only directory and not
mandatory and that the adjudicator does not become functus officio on completion
of 28 days. Pointing out the dates on which the 2 nd respondent submitted their
objections beyond 28 days and the dates of decisions which were being rendered
till Ext.P10, it was argued that the respondents are estopped from raising a plea on
the restriction of 28 days' period as they themselves were not taking any
seriousness on the same and they had never raised any objection on that ground. It
was argued that if at all there is any dispute on the decision of the adjudicator, the
2nd respondent ought to have taken up the matter before the arbitrator and in the
event of a resignation they ought to have proceeded in accordance with clause 26.
Referring to the judgment of the Royal Courts of Justice, London in Brims
Construction Ltd V A2M Development Ltd: [2013EWHC 3262 (TCC), it was
argued that the participation of the respondents in the proceedings before
adjudicator without raising any objection would amount to waiver and that the
decisions of the adjudicators are liable to be honoured and enforced and in a case
where the decision is not acceptable to a party it has to challenge the same.
Pointing out the definition of adjudicator in clause 1.1 of Ext.P1 it was argued that
it was for the Engineer to take a decision at the first instance. It was argued that
WP(C).No.13396 OF 2020(Y)
the name of the adjudicator was shown as Suresh in the notice inviting tender
itself. It is also pointed out that unlike Clause 25.3 relating to the procedure
relating to arbitration, no modifications were effected on clause 25.1 or 25.2 in
respect of proceedings before the Adjudicator. It was argued that on the face of
Ext.P13 the respondent could not have filed any counter affidavit contradictory to
the same.
11. Sri. K.V.Manojkumar, the learned Senior Government Pleader, relying
on the judgment of the Apex Court in DLF Housing Construction Pvt. Ltd. v.
Delhi Municipal Corporation & Ors:. (1976) 3 SCC 160 para.20, Vishambhar
Dayal Chandra Mohan v. State of U.P : (1982) 1 SCC 39, State of U.P & Ors. v.
Bridge and Roof Company (India) Ltd :AIR 1996 SC 3515, .ABL International
(2004)3 SCC 553, M/s.Gail (India) Ltd. v. M/s.Nagarjuna Cerachem Pvt.Ltd. :
AIR 2005 A.P 151, Kamla Construction Co V State of Jharkhand & others: 2004
(3)Arb LR 457, Vijayalakshmi Rice Mill & Ors. v. Commercial Tax Officer,
Palakol & Ors: 2006 (6) SCC 763, Iron & Steel Co.Ltd. v. Tiwari Road Lines :
(2007)5 SCC 703, Empire Jute Company Ltd. & Ors. v. Jute Corporation of
India Ltd. & Anr: (2007) 14 SCC 680, etc. argued that the Writ Petition is not
maintainable when the agreement itself provides for the remedies in the event of
disputes and there are disputed question of facts. It was also argued that clause
25.5.1 of Ext.P1 mandates that adjudicator shall give the decision within 28 days.
The learned Government Pleader argued that Clause 25.2 itself provides for the
consequence to the effect and matter has to be referred to arbitration and no Writ
WP(C).No.13396 OF 2020(Y)
Petition can be maintained on the question of estoppel which requires adjudication
of the question after adducing evidence.
12. Having heard the contentions on either side, it is necessary to have a
look at the provisions contained in Clauses 24 to 26 in the general conditions of
Contract in Ext.P1 which read as follows:
"24. Disputes
24.1: If the Contractor believes that a decision taken by the Engineer
was either outside the authority given to the Engineer by the Contract or that the
decision was wrongly taken, the decision shall be referred to the Adjudicator
within 14 days of the notification of the Engineer's decision.
25. Procedure for Disputes
25.1: The Adjudicator shall give a decision in writing within 28 days of
receipt of a notification of a dispute.
25.2: The Adjudicator shall be paid daily at the rate specified in the
Contract Data together with reimbursable expenses of the types specified in the
Contract Data and the cost shall be divided equally between the Employer and
the Contractor, whatever decision is reached by the Adjudicator. Either
party may refer a decision of the Adjudicator to an Arbitrator within 28
days of the Adjudicator's written decision. If neither party refers the dispute to
arbitration within the above 28 days, the Adjudicator's decision will be final and
binding.
25.3: The arbitration shall be conducted in accordance with the
arbitration procedure stated in the Special Conditions of Contract.
26. Replacement of Adjudicator
26.1 : Should the Adjudicator resign or die, or should the Employer and
the Contractor agree that the Adjudicator is not fulfilling his functions in
accordance with the provisions of the Contract, a new Adjudicator will be jointly
appointed by the Employer and the Contractor. In case of disagreement between
the Employer and the Contractor, within 30 days, the Adjudicator shall be
designated by the Appointing Authority designated in the Contract Data at the
request of either party, within 14 days of receipt of such request."
A perusal of the aforesaid provisions would show that there is a prescription of
WP(C).No.13396 OF 2020(Y)
particular number of days at each stage for approaching the Adjudicator and also
for the decision of the Adjudicator and thereafter for approaching the Arbitrator.
13. Under Clause 24 if the contractor disputes the decision of the
Engineer, the decision "shall be" referred to the Adjudicator within 14 days of the
decision of the Engineer. It does not even refer to the response or objection to be
obtained by the Adjudicator. It only says that the adjudicator shall give a decision
in writing within 28 days of the receipt of notification of a dispute. It would be
optional for either party to approach the Arbitrator; but it should be within 28 days.
And if it is not referred, the decision of the adjudicator would be binding. But there
is not even a single decision of adjudicator before or within 28 days.
14. It is seen that the Adjudicator had at one stage requested for time upto
15.12.2018. No material is produced to show the permission, if any, obtained to
continue after the said date. The Adjudicator, who submitted resignation at least
twice goes on calling for updated claim petitions, additional documents, site visit
etc., takes about 10 months for a decision on Ext.P9 petition. The petitioner
continues to submit petitions, updated claims; the 2nd respondent continues to
submit their objections after months, despite the time limit prescribed for each
stage of the process for initiating, finalising and for referring the matter .
15. It is also relevant to note that the adjudicator continues with the
proceedings even after the expiry of the agreement on 31.12.2019 and much after
the time permitted was over. The respondents at one stage says that when there is
no agreement after 31.12.2019 there cannot be any Adjudicator. At the same time,
WP(C).No.13396 OF 2020(Y)
they say that they are got a new adjudicator appointed after the said date. It is not
clear whether a new adjudicator can function in the absence of agreement. Though
several judgments were relied on in support of the contention that the respondents
who waived the time limit without raising any objection are estopped from raising
objections as to delay occurred in the decision of the Adjudicator, when serious
allegations are raised by each other on the proceedings leading to Ext.P10, I am of
the view that a decision as to the finality of Ext.P10 need be considered by this
Court only if it is decided to entertain the Writ Petition.
16. As rightly contended by the learned Senior Counsel, the Government
and the authorities under it are expected to act fairly and even in contractual
matters there is no total ban against judicial review as held in ABL International's
case (supra). But in the very same judgment, as contended by the learned
Government Pleader, the Apex Court held that in cases where agreement itself
provides for settling disputes, that remedy has to be resorted to. In that case it was
found that there was no provision in the agreement for settlement of disputes. In
para.14 of the judgment it was held as follows:
"14. xxxx It is well known that if the parties to a dispute had agreed to settle their
dispute and if there is an agreement in that regard, the courts will not permit recourse
to any other remedy without invoking the remedy by way of arbitration, unless of
course both the parties to the dispute agree on another mode of dispute resolution."
17. From the pleadings it is seen that serious allegations are raised
between the parties with respect to the proceedings stated to have been adopted by
the adjudicator, the documents produced by the petitioner and very serious
WP(C).No.13396 OF 2020(Y)
allegations are raised against the contentions raised in the counter affidavit of the
respondents. A decision as to the veracity of these allegations can be arrived at
only after adjudication after adducing evidence. Therefore, in the light of the
judgments relied on by the learned Government Pleader in D.L.F. Housing
Construction (P) Ltd's case (supra), Bishambhar Dayal Chandra Mohan's case
(supra), Bridge & Roof Co. (India) Ltd's case (supra), Iron & Steel Co. Ltd.
Empire Jute Co. Ltd's case (supra), I am of the view that exercise of jurisdiction
under Article 226 is not warranted in the facts and circumstances of the case.
The writ petition is accordingly dismissed, leaving open all the contentions
raised by the parties.
Sd/- (P.V.ASHA, JUDGE)
rtr/
WP(C).No.13396 OF 2020(Y)
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE
AGREEMENT NO.2 SEPCP-2016-17 DATED
18.05.2016 EXECUTED BETWEEN THE PETITIONER
AND THE 2ND RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE LETTER NO.D1-2470/2015
DATED 27.02.2018 OF THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE LETTER NO.MMC-C/BK/18/1748
DATED 12.03.2018 SUBMITTED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED
16.03.2018 FOR APPOINTING THE PRESIDING
ARBITRATOR FOR ARBITRAL TRIBUNAL.
EXHIBIT P5 TRUE COPY OF THE PETITION DATED 04.01.2018
SUBMITTED BY THE PETITIONER BEFORE THE
ADJUDICATOR.
EXHIBIT P5(A) TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT DATED 30.01.2018.
EXHIBIT P5(B) TRUE COPY OF THE AWARD OF THE ADJUDICATOR
DATED 12.02.2018.
EXHIBIT P6 TRUE COPY OF THE PETITION DATED 12.04.2018
SUBMITTED BY THE PETITIONER.
EXHIBIT P6(A) TRUE COPY OF THE LETTER
NO.ADJ/BHKT/AWARD/3/ DATED 18.05.2018 OF
THE ADJUDICATOR.
EXHIBIT P6(B) TRUE COPY OF THE PETITION DATED 18.06.2018
SUBMITTED BY THE PETITIONER BEFORE THE
ADJUDICATOR.
EXHIBIT P6C TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENTS DT.15.09.18
EXHIBIT P7 TRUE COPY OF THE LETTER NO.MMC/C/BK/18/2330
DATED 20.08.2018.
EXHIBIT P8 TRUE COPY OF THE DECISION OF ADJUDICATOR
DATED 03.12.2018.
WP(C).No.13396 OF 2020(Y)
EXHIBIT P8(A) TRUE COPY OF THE DECISION OF ADJUDICATOR
DATED 15.12.2018.
EXHIBIT P9 TRUE COPY OF THE UPDATED PETITION SUBMITTED
BY THE PETITIONER DATED 12.01.2019.
EXHIBIT P9(A) TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT ON 02.03.2019.
EXHIBIT P10 TRUE COPY OF THE DECISION OF THE
ADJUDICATOR DATED 20.01.2020.
EXHIBIT P11 TRUE COPY OF THE LETTER NO.D1/2470/2015
DATED 29.01.2020.
EXHIBIT P12 TRUE COPY OF THE LETTER NO.MIPL-
C/BK/20/1871 DATED 07.02.2020.
EXHIBIT P13 TRUE COPY OF THE LETTER NO.D1/2470/15 DATED
13.02.2020.
EXHIBIT P14 TRUE COPY OF THE LETTER NO.D1/2470/2015 OF
THE RESPONDENT.
EXHIBIT P15 TRUE COPY OF THE LETTER DATED 10.03.2020 OF
THE PETITIONER.
EXHIBIT P16 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
05/03/2018.
EXHIBIT P17 TRUE COPY OF THE LETTER NO.D1-2470/2015
DATED 05/04/2018 OF THE 2ND RESPONDENT.
EXHIBIT P18 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
22/09/2018 OF THE ADJUDICATOR.
EXHIBIT P19 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
11/10/2018 OF THE ADJUDICATOR.
EXHIBIT P20 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
13/11/2018 OF THE ADJUDICATOR.
EXHIBIT P21 TRUE COPY OF THE LETTER NO.D1-2470/2015
DATED 14/11/2018 OF THE 2ND RESPONDENT.
EXHIBIT P22 TRUE COPY OF THE LETTER NO.D1-2470/2015
DATED 19/11/2018 OF THE 2ND RESPONDENT.
EXHIBIT P23 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
20/11/2018 OF THE ADJUDICATOR.
EXHIBIT P24 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
22/11/2018 OF THE ADJUDICATOR.
WP(C).No.13396 OF 2020(Y)
EXHIBIT P25 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
24/11/2018 OF THE ADJUDICATOR.
EXHIBIT P26 TRUE COPY OF THE AWARD ADJ/BHKT DATED
01/12/2018 OF THE ADJUDICATOR.
EXHIBIT P27 TRUE COPY OF THE AWARD ADJ/BHKT DATED
03/12/2018.
EXHIBIT P28 TRUE COPY OF THE LETTER NO.D1-2470/15 DATED
08/12/2018 OF THE 2ND RESPONDENT.
EXHIBIT P29 TRUE COPY OF THE LETTER NO.MMC-C/BK/18/2019
DATED 10/12/2018.
EXHIBIT P30 TRUE COPY OF THE LETTER NO.D1-2470/2015
DATED 10/12/2018 OF THE 2ND RESPONDENT.
EXHIBIT P31 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
12/04/2019 OF THE ADJUDICATOR.
EXHIBIT P32 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
12/12/2019 OF THE ADJUDICATOR.
EXHIBIT P33 TRUE COPY OF THE LETTER NO.ADJ/BHKT DATED
19/12/2019.
EXHIBIT P34 TRUE COPY OF THE ATTENDANCE REGISTER FOR
HEARING CONDUCTED ON 21/12/2019.
RESPONDENTS' EXHIBITS
ANNEX.A TRUE COPY OF THE LETTER OF RESIGNATION
GIVEN BY THE ADJUDICATOR
ANNEX.B TRUE COPY OF THE COMMUNICATION
DT.29.01.2020
ANNEX.C TRUE COPY OF THE LETTER ISSUED BY THE 2ND
RESPONDENT TO THE APPOINTING AUTHORITY,
INSTITUTION OF ENGINEERS (INDIAN) KERALA
STATE CENTRE
