M.Ashraf vs Secretary
2021 Latest Caselaw 17800 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
   WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
                           AR NO. 9 OF 2020
PETITIONER:

            M.ASHRAF, AGED 40 YEARS
            S/O. KAMMED HAJI, A CLASS GOVERNMENT CONTRACTOR,
            MOOLANKUZHIYIL HOUSE, PAZHAMALLOOR P.O, MALAPPURAM -676
            506

            BY ADV TESSY JOSE



RESPONDENTS:

    1       SECRETARY
            JALANIDHI SCHEME LEVEL COMMITTE, MANGARA GRAMA
            PANCHAYATH, VELLAROAD P.O, PALAKKAD-678 613

    2       THE PROJECT DIRECTOR, KERALA RURAL WATER SUPPLY &
            SANITATION AGENCY, REGIONAL PROJECT MANAGEMENT UNIT,
            MMC.X/108-112, 2ND FLOOR, UMK TOWER, JUBILEE ROAD,
            UPHILL, MALAPPURAM - 676 505

    3       THE PROJECT COMMISSIONER, (DELETED)
            MANKARA GPST, JALANIDHI, MRWSA, MANKARA P.O, PALAKKAD-
            678 613

            (THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT
            THE RISK AND COST OF THE PETITIONER, AS PER THE ORDER
            DATED 26.08.2020 IN IA.1/2020.)

            BY ADV SRI.D.KISHORE




     THIS   ARBITRATION   REQUEST   HAVING   COME   UP   FOR   ADMISSION   ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 AR NO. 9 OF 2020
                                      2


                                  ORDER

The petitioner has approached this Court invoking

Section 11 of the Arbitration and Conciliation Act, 1996 (for

short, 'the Act'), alleging that certain disputes have arisen

between him and the respondents with respect to Annexure

A1 agreement.

2. According to the petitioner, as per clause 14 of

Annexure A1 agreement, every dispute between the parties

has to be resolved only through the mechanism of

arbitration; and therefore, prays that this Court appoint a

suitable Arbitrator to immediately adjudicate and resolve the

same. The petitioner adds that he has already requested the

respondents through Annexure 4 seeking the initiation of the

process of Arbitrator, but that they did not respond to the

same; thus constraining him to approach this Court.

3. I have heard Smt.Tessy Jose, the learned counsel for

the petitioner and Smt.Arya Joseph, learned counsel

appearing for the respondents.

4. Smt.Arya Joseph did not oppose the plea of the

petitioner for appointment of a sole Arbitrator, but pointed

out that, going by clause 14 of Annexure A1 agreement, the AR NO. 9 OF 2020

Arbitrator will have to be appointed by her client. She

submitted that, therefore, this Court may allow her client to

appoint a suitable Arbitrator in terms of the said agreement.

5. Even when I hear Smt.Arya Joseph as afore, the fact

remains that, consequent to the amendment to the Act,

particularly the introduction of Section 12(5) thereof, no

party to an agreement can either arbitrate or appoint an

Arbitrator and this has been held by this Court in a recent

judgment in Tulsi Developers India Pvt. Ltd. v. Dr. Appu

Benny Thomas (AR No.105/2020). In fact, this Court was

following the judgment of the Hon'ble Supreme Court in

Newton Engineering and Chemicals Ltd. v. Indian Oil

Corporation Ltd. and others [(2013) 4 SCC 44] and TRF

Ltd. v. Energo Engineering Projects Ltd. [(2017) 8 SCC

377] which cements this position in law; and I am, therefore,

of the firm view that, notwithstanding the terms of clause 14

of the agreement, this Court is now enjoined to appoint a

sole Arbitrator, particularly when both sides agree that the

disputes should be referred and adjudicated through such

mechanism.

6. In the afore circumstances, leaving open all the AR NO. 9 OF 2020

contentions of the rival parties to be pursued before the

learned Arbitrator, I dispose of this Arbitration Request in

the following manner:

(a) I nominate Smt.M.Chandralekha, Flat No.B, 2 nd

Floor, Galaxy Arcade, Peediyekkal, Abdul Rehman Road,

Near SRM Road, Ernakulam, as the sole Arbitrator to

adjudicate and resolve the disputes and differences between

the parties to this case, arising from and relating to

Annexure-A1 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.

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

Fourth Schedule of the Arbitration and Conciliation Act, AR NO. 9 OF 2020

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 A.M. on 12.10.2021.

Sd/- DEVAN RAMACHANDRAN JUDGE STU AR NO. 9 OF 2020

APPENDIX OF AR 9/2020

PETITIONER ANNEXURE

ANNEXURE A1 TRUE COPY OF THE AGREEMENT DT. 18.1.2017 BETWEEN THE PETITIONER AND THE 1ST RESPONDENT.

ANNEXURE A1(A) TRUE COPY OF THE UNDERSTANDING FOR THE AGREEMENT BETWEEN THE APPLICANT AND THE 1ST RESPONDENT.

ANNEXURE A2 TRUE COPY OF THE SUPPLEMENTARY AGREEMENT DATED 4.8.2018.

ANNEXURE A3 TRUE COPY OF THE COMPLETION CERTIFICATE ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A3(A) (TRUE COPY OF THE COMPLETION CERTIFICATE DATED 16.5.2019 ISSUED BY THE 2ND RESPONDENT).

ANNEXURE A4 TRUE COPY OF THE REQUEST DATED 1.11.2018 SENT BY THE APPLICANT TO THE RESPONDENTS.

ANNEXURE A5 TRUE COPY OF THE REQUEST DATED 8.11.2018 SENT BY THE PETITIONER TO THE RESPONDENTS.

ANNEXURE A6 (TRUE COPY OF THE COMMUNICATION DATED 21.1.2019 SENT BY THE APPLICANT TO THE 2ND RESPONDENT).

ANNEXURE A7 TRUE COPY OF THE COMMUNICATION DATED 14.5.2019 SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

ANNEXURE A8 TRUE COPY OF THE COMMUNICATIONS DATED 20.5.2019 SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT).

ANNEXURE A9 TRUE COPY OF THE COMMUNICATION DATED AR NO. 9 OF 2020

22.5.2019 SENT BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.

ANNEXURE A10 TRUE COPY OF THE COMMUNICATION BY THE APPLICANT TO THE 1ST AND 2ND RESPONDENT DT. 25.5.2019.

ANNEXURE A11 TRUE COPY OF THE COMMUNICATION DT.

1.6.2019 SENT BY THE APPLICANT TO THE 1ST RESPONDENT.

ANNEXURE A12 TRUE COPY OF THE NOTICE ISSUED TO THE 1ST AND 2ND RESPONDENT BY THE LAWYER DT. 20.08.2019

ANNEXURE A13 TRUE COPY OF REPLY NOTICE DT. 30.08.2019 TO THE LAWYER BY THE 1ST RESPONDENT.

ANNEXURE A14 TRUE COPY OF NOTICE DT. 19.10.2019 BY THE APPLICANT TO THE 1ST AND 2ND RESPONDENT.

ANNEXURE A14(A) TRUE COPY OF THE ACKNOWLEDGEMENT CARD DATED 23.10.2019 BY THE POSTAL AUTHORITIES.

ANNEXURE A14(B) TRUE COPY OF THE ACKNOWLEDGEMENT CARD DATED 21.10.2019 BY THE POSTAL AUTHORITIES.