Kerala High Court
Infra Elevators India Private ... vs Bharat Sanchar Nigam Limited on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
AR NO. 4 OF 2021
PETITIONER:
INFRA ELEVATORS INDIA PRIVATE LIMITED
REGISTERED OFFICE AT INFRA HOUSE 44/2118A, BC LANE,
CHURCH ROAD, PALLINADA, PALARIVATTOM, KOCHI 682 025,
REPRESENTED BY ITS AUTHORIZED SIGNATORY, MADHU M.R.
BY ADVS.
SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL
SMT.KARTHIKA MARIA
SMT.VEENA RAVEENDRAN
SRI.ANIL SEBASTIAN PULICKEL
SMT.DIVYA SARA GEORGE
RESPONDENTS:
1 BHARAT SANCHAR NIGAM LIMITED
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
CORPORATE OFFICE, HARISH CHANDER MATHER LANE,
NEW DELHI 110 101.
2 THE CHIEF GENERAL MANAGER TELECOM,
KERALA CIRCLE, BSNL, KERALA TELECOM CIRCLE,
PMG JUNCTION, THIRUVANANTHAPURAM 695 033.
3 THE SECRETARY,
DEPARTMENT OF TELECOM, MINISTRY OF
TELECOMMUNICATIONS, 20, SANCHAR BHAWAN, ASHOKA ROAD,
NEW DELHI DELHI 110 001.
4 MR. RAJEEV S K,
ARBITRATOR AND DGM, (EB/MKTG. ALUVA), O/O THE
PRINCIPAL GENERAL MANGER TELECOM, BSNL BHAVAN,
KALATHIPARAMBU ROAD, ERNAKULAM 682 016.
R1 & R2 ADV SRI.R.SUDHISH
AR NO. 4 OF 2021 2
OTHER PRESENT:
R3 SRI P VIJAYAKUMAR CGC
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
AR NO. 4 OF 2021 3
ORDER
The petitioner says that they were issued with a
telephone bill for an usurious amount of
Rs.9,32,980/- by the respondents and that they
preferred a representation against it, which,
however, was not acceded to. They say that,
therefore, a dispute having been arisen between the
parties under the provisions of the Indian Telegraph
Act, they had no other option, but to approach this
Court through W.P(C)No.29478 of 2018 and to obtain
Annexure A3 judgment, whereby, they were given
liberty to approach the 1st respondent - Union of
India for appointment of a suitable Arbitrator, which
they did through Annexure A4.
2. The petitioner says that an Arbitrator was,
thereupon, appointed by the Union of India through
order dated 06.03.2019, but that since he expressed
his unwillingness, a new Arbitrator was appointed on
29.03.2019 who, however, retired on attaining the
age of superannuation soon thereafter.
3. The petitioner points out that, subsequently,
a third Arbitrator was appointed by the Union of
India who, however, took voluntary retirement and
finally that 4th respondent was so nominated and
appointed on 28.09.2020. They say that the 4th
respondent then issued a letter to them, asking for
their Claim Statement; but contends that he is
incompetent to be either appointed as an Arbitrator
or to continue as such, because he is, admittedly, an
employee of the BSNL.
4. The petitioner thus predicates that
appointment of the 4th respondent is hit by the
rigour of Section 12(5) of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as
'the Act' for short); and thus prayed that this Court
terminate his mandate and appoint a sole independent
Arbitrator, so as to adjudicate the disputes between
the parties without any further delay.
5. I have heard Smt.Karthika Maria, learned
counsel for the petitioner; Shri.R.Sudhish, learned
Standing Counsel appearing for respondents 1 & 2 -
BSNL and the learned Assistant Solicitor General -
Shri.P.Vijayakumar, appearing for the 3rd respondent
- Department of Telecom, Union of India.
6. Shri.R.Sudhish, learned Standing Counsel,
submitted that a counter affidavit has been filed by
his clients detailing the successive nominations made
by the Union of India as Arbitrators to resolve the
disputes involved in this case. He affirmed that 4 th
respondent was finally appointed by the Union of
India, after having nominated at least other officers
prior to him - who could not, however, continue for
the reasons already seen above - and that arbitration
proceedings before him is now continuing. He,
therefore, prayed that this Arbitration Request be
dismissed, because petitioner cannot claim anything
more than the appointment of an Arbitrator, which has
already been acceded to by the Union of India, as per
the directions of this Court in Annexure A3 judgment.
7. When I evaluate the afore submissions, it can
brook no doubt that, through Annexure A3 judgment,
this Court had granted liberty to the petitioner to
approach the Union of India and seek nomination of an
Arbitrator. The Union of India did so, but on account
of the reasons noticed above, successive Arbitrators
were unable to continue; and it is finally, after at
least four such nominations having turned acarpous,
that 4th respondent was nominated. However,
admittedly, 4th respondent is an employee of the
BSNL; and consequently, under the affirmative rigour
of the declarations of the Hon'ble Supreme Court in
TRF Limited v. Energo Engineering Projects Limited
[(2018) 8 SCC 377], which has been followed by me in
Tulsi Developers India Pvt. Ltd. v. Dr.Appu Benny
Thomas [2021(5) KLT 339], such a nomination is
impermissible and contrary to the mandate of the Act.
8. Pertinently, to a pointed question from this
Court, Shri.R.Sudhish conceded that 4th respondent
cannot arbitrate the disputes, since he is an
employee of the BSNL; but argued that, in such event,
this Court must grant liberty to his client to
approach the Union of India again seeking appointment
of a new Arbitrator.
9. I am afraid that I cannot accede to the afore
request of Shri.R.Sudhish, because the Union of India
has named the 4th respondent as the Arbitrator, but
without paying heed to the rigour of Section 12(5) of
the Act. Obviously, therefore, the petitioner is
fully justified in having challenged his mandate
before this Court through this Arbitration Request.
10. Further, it is crucial that this Arbitration
Request has not been preferred by the BSNL, but by
the petitioner; and indubitably, therefore, I cannot
accede to the request of the BSNL for being granted
liberty to approach the Union of India for
appointment of a new Arbitrator, since they cannot do
so, as long as the mandate of the 4th respondent
continues.
11. Presumably being aware of the mind of this
Court as afore, Shri.R.Sudhish submitted that if this
Court is inclined to allow this Arbitration Request
and to appoint a competent sole Arbitrator, then a
retired District Judge may be so nominated.
Taking note of the afore, I allow this
Arbitration Request in the following manner:
(a) I nominate Shri.P.Chandrasekharan Pillai,
'Indeevaram', West Karuvelil, Vennala Post, Kochi-
28, as the sole Arbitrator, to adjudicate and
resolve the disputes and differences between the
parties to this case.
(b) The Registry is directed to communicate a
copy of this order to the learned Arbitrator
within a period of two weeks from today and to
obtain a Statement of Disclosure from him 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.
(d) The fees of the Arbitrator shall be
governed by the Fourth Schedule of the Arbitration
and Conciliation Act, 1996.
(e) In order to enable the Arbitrator to
commence the proceedings without delay, I direct
the parties to mark appearance before him at 11.00
a.m. on 29.11.2021.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
MC/21.10
APPENDIX OF AR 4/2021
PETITIONER ANNEXURE
ANNEXURE A1 TRUE COPY OF THE REPRESENTATION BY THE
PETITIONER DATED 11.5.2018.
ANNEXURE A2 TRUE COPY OF THE REPLY OF THE 1ST
RESPONDENT BSNL.
ANNEXURE A3 TRUE COPY OF THE JUDGMENT IN WPC NO.
29478/2018 DATED 7.12.2018.
ANNEXURE A4 TRUE COPY OF THE LETTER DATED 13.1.2019
ALONG WITH THE RECEIPT OF PAYMENT OF
RS.27,500/-
ANNEXURE A5 TRUE COPY OF THE LETTER DATED 24.10.2020
ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONER.
ANNEXURE A6 TRUE COPY OF THE REQUEST DATED 2.11.2020.
RESPONDENTS EXHIBITS
EXHIBIT R1(a) COPY OF THE LETTER NO.NMS/135-1/2011-
12(Pt)/69 DATED 28.12.2017.
