Galaxy Technology Solutions vs Entregar Solutions Pvt Ltd
2021 Latest Caselaw 14389 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

          TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943

                                AR NO. 26 OF 2020

PETITIONER:

               GALAXY TECHNOLOGY SOLUTIONS
               PANAYAM P.O., PERINADU, KOLLAM, KERALA-691601, REPRESENTED
               THROUGH ITS PARTNER AND DIRECTOR OF PROJECTS, SRI.JOHN THOMAS,
               S/O.P.J.THOMAS, ENGINEER, PADINJATTE VEEDU, PERINADU, PANAYAM
               P.O., KOLLAM TALUK AND DISTRICT.

               BY ADV JOHN JOSEPH(ROY)



RESPONDENTS:

     1         ENTREGAR SOLUTIONS PVT LTD
               GROUND FLOOR, ASHTAMUDI TOWERS, TECHNOPARK CAMPUS, KUNDARA,
               KOLLAM-691501, REPRESENTED BY ITS MANAGING DIRECTOR SRI. SHYAM
               CHANDRASEKHARAN.

     2         MR. SHYAM CHANDRASEKHARAN,
               MANAGING DIRECTOR, M/S. ENTREGAR SOLUTIONS PVT LTD., SHYAM
               NIVAS, CHATHINAMKULAM, CHANDANATHOPE, KOLLAM, PIN-691014.

               BY ADV SRI.M.RAJESH




     THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 13.07.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 AR NO. 26 OF 2020

                                    2




                              JUDGMENT

The applicant has approached this Court under the provisions

of Section 11(6) of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as "the Act" for short), seeking that this

Court nominate and appoint a suitable Arbitrator to adjudicate and

resolve the disputes, which have been raised by them in Annexure

A-6 notice issued to the respondents.

2. The applicant says that they and the respondents had

entered into Annexure A-1 agreement, in which, there is a clause

which specifically provides for Arbitration in the case of any

disputes or differences arising between them. The applicant

alleges that, however, in spite of Annexure A-6 notice having been

received by the respondents, they have chosen not to reply or to

accede to the request for Arbitration. They, therefore, pray that a

suitable Arbitrator be appointed by this Court.

3. I have heard Sri.John Joseph (Roy), learned counsel

appearing for the applicant and Sri.Rajesh Murali, learned counsel

appearing for the respondents.

4. The only contention of Sri.Rajesh Murali, against the AR NO. 26 OF 2020

request of the applicant for appointment of a sole Arbitrator, is that

Clause 13 of Annexure A-1, which is concededly the Arbitration

Clause, provides for appointment of an "independent Arbitrator

appointed by the Chamber of Commerce/Consumer Court of

Ernakulam" (sic). He submitted that, therefore, when there is a

specific procedure agreed to upon by the parties under the aegis of

Section 11(2) of the Act, then this Court can only appoint an

Arbitrator based on the same and not otherwise. He relied upon the

judgment of the Hon'ble Supreme Court in Civil Appeal

No.2747/2020, in substantiation of this argument.

5. When I examine Clause 13 of Annexure A-1 agreement, it

is clear that parties have consented to resolve the disputes through

the mechanism of Arbitration, but it has provided therein that the

sole Arbitrator shall be appointed only by the Chamber of

Commerce/Consumer Court of Ernakulam. It is needless to say that

the Consumer Court at Ernakulam cannot appoint an Arbitrator nor

can the Chamber of Commerce, which is at the best, a voluntary

Association of Traders in the State of Kerala.

6. Noticing this, I asked the learned counsel for the

respondents, Sri.Rajesh Murali, whether his clients seriously stick

on to the afore contention, to which he submitted that they are also AR NO. 26 OF 2020

interested in Arbitration and therefore, that this Court may appoint

a suitable Arbitrator appropriately, under the provisions of Section

11(6) of the Act, so that the disputes can then be resolved as per

law.

In the afore circumstances and taking note of the fact that

both sides want their disputes to be resolved through Arbitration, I

allow this request in the following manner:

(a) I nominate P.A.Reziya, Jamal Manzil, Kanmani Lane

Asoka Road, Kaloor, Kochi - 682 017, as the sole Arbitrator to

adjudicate and resolve the disputes and differences between the

parties to this case arising from Annexure A-1 agreement.

(b) The Registry is directed to communicate a copy of this

order to the learned Arbitrator within a period of one week from

today and to obtain a Statement of Disclosure from her under

Section 11(8) read with Section 12(1) of the Arbitration and

Conciliation Act, 1996.

(c) Once the Disclosure Statement is obtained from the

learned Arbitrator, the Registry shall release the certified copy of

this order, with a copy of the said statement appended to it,

retaining the original of the same on the files of this case. AR NO. 26 OF 2020

(d) The fees of the Arbitrator shall be governed by the

Fourth Schedule.

(e) The parties to this case are ad idem that they will share

the arbitration costs and fees equally and it is so recorded.

(f) In order to enable the Arbitrator to commence the

proceedings without delay, I direct the parties to mark

appearance before her at 11.00 AM on 23.08.2021.

This Arbitration Request is thus allowed.

Sd/-

DEVAN RAMACHANDRAN JUDGE rp AR NO. 26 OF 2020

APPENDIX OF AR 26/2020

PETITIONER'S ANNEXURE:

ANNEXURE A1 THE TRUE COPY OF THE AGREEMENT DATED 14.10.2016 ENTERED INTO BETWEEN THE APPLICANT AND THE RESPONDENTS.

ANNEXURE A2 THE TRUE COPY OF THE BILL DATED 27.04.2017 ISSUED TO THE RESPONDENT FOR RS.18,51,748.00.

ANNEXURE A3 THE TRUE COPY OF THE BILL DATED 27.04.2017 ISSUED TO THE RESPONDENT FOR RS.11,63,407.00.

ANNEXURE A4 TRUE COPY OF E.MAIL LETTER DATED 16.05.2017 ISSUED TO THE 2ND RESPONDENT.

ANNEXURE A5 TRUE COPY OF LETTER DATED 17.05.2017 ISSUED TO THE 2ND RESPONDENT.

ANNEXURE A6 TRUE COPY OF THE LAWYER NOTICE DATED 14.06.2017 ISSUED BY THE APPLICANT TO THE RESPONDENTS.