Kerala High Court
M/S. Om Construction vs Engineer In Chief on 14 June, 2022
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.
==============================
Arbitration Request No.54 of 2022
==========================
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.
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
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
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
