Madras High Court
General Manager vs M/S.Jv Engineering Associate on 18 August, 2021
O.S.A.No.270 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MRS.JUSTICE S.KANNAMMAL
O.S.A.No.270 of 2021
and C.M.P.Nos.12680 & 12681 of 2021
General Manager, CORE, Allahabad,
Rep. By Deputy Chief Engineer,
Railway Electrification,
Egmore, Chennai. .. Appellant
Vs
M/s.JV Engineering Associate
Civil Engineering Contractors,
17,Kuttakattu Valasu,
Elumathur (PO), Modakurichi (via),
Erode – 638 014 (Tamil Nadu)
Rep. By its Partner,
S.Jaikumar .. Respondent
Appeal filed under Order XXXVI Rule 1 of O.S. Rules read with
Section 37 of Arbitration and Conciliation Act, 1996 amended act 2015
against the judgment and decree dated 10.2.2020 made in O.P.No.446
of 2019.
For Appellant : Mr.P.Thiruppathi Ramkumar
For Respondent : Mr.Sri Ganesh
Page 1 of 7
https://www.mhc.tn.gov.in/judis/
O.S.A.No.270 of 2021
JUDGMENT
(Delivered by M.M.SUNDRESH, J.)
The issue involved in the appeal is no longer res integra.
Between the same parties, the application filed invoking Section 34 of
the Arbitration and Conciliation Act, 1996 (for short 'the Act') were
allowed in O.P.Nos. 447 and 449 of 2019. The appeals have been filed
by the appellant in O.S.A (CAD) Nos. 43 & 44 of 2021.
2. The respondent is the Contractor of the appellant. Pursuant to
the work allotted, the dispute arose leading to the appointment of an
Arbitrator. The consent was given by the respondent to proceed with
the matter before the learned Arbitrator. The learned Arbitrator
decided the matter on merit.
3. In the applications filed under Section 34 of the Act, a
contention has been raised by the respondent that the learned
Arbitrator was ineligible to act in the said capacity, which found
favoured with the learned Single Judge. Aggrieved over the same, the
present appeal has been filed.
https://www.mhc.tn.gov.in/judis/
O.S.A.No.270 of 2021
4. The very same issue was raised and dealt in O.P.Nos.447 and
449 of 2019. In the appeal referred supra, the Division Bench of this
Court after taking note of the relevant provisions coupled with the
respondent has given consent to the conclusion of the proceedings by
the learned Arbitrator, was pleased to allow the appeals. The following
are the relevant paragraphs of the order passed:-
“15. In the present case, upon the respondent
invoking the arbitration agreement and demanding
the appointment of an arbitrator, the respondent
was advised by the appellant of the 2015
amendment and of original Clause 64 of the 2014
general conditions having been modified. To boot,
Annexure XII, a form of waiver, was appended to
the letter dated September 13, 2017 issued in
reply to the respondent's demand for an arbitral
reference.
16. Again, the respondent's reply thereto
was clear and unequivocal. The respondent
referred to Clause 64 of GCC-2104 and spurned
Annexure XII as it was unnecessary in the context
of what was asserted by the respondent in such
letter. So that the letter is not misread and what
the respondent sought to communicate to the
railways is not misinterpreted, the exact words of
the respondent have been quoted above.
17. In such circumstances, when the
respondent was made aware of the amendment to
the statute, and even his right to come out of the
appointment procedure as recognised in old
Clause 64 of GCC-2014, the respondent's clear
https://www.mhc.tn.gov.in/judis/
O.S.A.No.270 of 2021
acceptance of GCC-2014 in response and his
reference to Annexure XII being unnecessary
would amount to an express agreement in writing
of the kind contemplated in the Proviso to Section
12(5) of the Act. All three conditions are met.
18. An implied waiver would be when the
surrounding circumstances indicate that the
person waiving a right was generally aware or
ought to have been aware or may be reasonably
seen to be aware and consciously take a decision
in such regard. Express waiver, on the other hand,
would arise when the right is specifically brought
to the notice of the person, he responds thereto
and such response reveals his awareness of his
right; and, finally, the conscious relinquishment of
the known right.
19. The expression, "express agreement in
writing" cannot be confined to only a legal
document which would be signed by two parties
and the person waiving the right would include
words "as I hereby expressly waive ..." or the like.
Just as an agreement – including an arbitration
agreement, no less – can be culled out from a
series of correspondence or letters exchanged
between the parties, an express agreement in
writing within the meaning of the relevant
expression in the Proviso may also be found from
a series of letters exchanged between the parties
to the arbitration agreement. As long as the three
conditions germane to the relevant Proviso are
complied with and a conscious decision on the part
of the party waiving the right is evident, it
suffices.
20. For the reasons aforesaid, the specious
ground carried in the petition under Section 34 of
the Act pertaining to the disqualification of the
arbitrator in his very appointment, was not
available to the respondent herein as the
https://www.mhc.tn.gov.in/judis/
O.S.A.No.270 of 2021
respondent had waived the applicability of Section
12(5) of the Act in course of the correspondence
exchanged between the parties in September,
2017, subsequent to the demand for an arbitral
reference and prior to the appointment of the sole
arbitrator being made.
21. In the light of the above, the judgment
and order impugned dated February 10, 2020
cannot be sustained since it dwelt only on the
ground of disqualification of the arbitrator to be
appointed. As such, the impugned judgment and
order are set aside. However, since the challenge
on the merits of the arbitral award, to the extent
permissible, was not addressed in the judgment
and order impugned, the matter is remanded for a
fresh consideration limited to other permissible
grounds, except any ground pertaining to the
disqualification of the sole arbitrator in terms of
Section 12(5) of the Act.”
5. Thus, the issue involved in the appeal is squarely covered by
the aforesaid order passed by the Division Bench which we are in
respectable agreement with.
6. In such view of the matter, the order passed by the learned
single Judge stands set aside and the original side appeal stands
allowed and the matter is remitted to the learned single Judge for
fresh consideration as the other issues raised by the respondent have
not been considered. Since the issues are interconnected, O.P.No.446
https://www.mhc.tn.gov.in/judis/
O.S.A.No.270 of 2021
of 2019 be tried along with O.P.Nos.447 & 449 of 2019. No costs.
Consequently, connected miscellaneous petitions are closed.
(M.M.S., J.) (S.K., J.)
18.08.2021
Index:Yes/No
mmi/ssm
To
The Sub Assistant Registrar,
Original Side Appeal
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
O.S.A.No.270 of 2021
M.M.SUNDRESH,J.
and
S.KANNAMMAL,J.
mmi
O.S.A.No.270 of 2021
18.08.2021
https://www.mhc.tn.gov.in/judis/
