Hindustan Petroleum Corporation Ltd. v. N. Krishnan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944** ## **AR NO. 16 OF 2021** ## **APPLICANT :** **HINDUSTAN PETROLEUM CORPORATION LTD., REGIONAL OFFICE, P.O.BOX 1601, ERNAKULAM NORTH, KOCHI-682018, REPRESENTED BY ITS CHIEF REGIONAL MANAGER, MR.SARABJIT SINGH.** **BY ADVS. M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN SMT.POOJA MENON** ## **RESPONDENT :** **N.KRISHNAN, S/O.K.W.MURALEEDHARA MARAR, LAKSHMI, H.NO.39/1276, KALATHILPARAMBIL ROAD, ERNAKULAM - 682 016, REPRESENTED BY POWER OF ATTORNEY HOLDER, M.P.SAMPATH KUMAR, S/O.M.N.PRAKASH, MUKKUTTIVIL, VENGALLOOR P.O., THODUPUZHA-685 584.** **BY ADVS. BABU CHERUKARA ARUN BABU** **THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION** **ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **A.R NO.16 OF 2021** 2 **Sathish Ninan, J. ============================== A.R NO.16 OF 2021 ========================== Dated this the 13[th] day of July, 2022** ## **O R D E R** The respondent is the landlord (being the successor in interest of the original landlord) and the applicant is the tenant. Annexure A lease deed was executed between the parties. There has arisen disputes between the parties in relation to a renewal clause in the deed. Annexure A deed contains an Arbitration Clause providing for resolution of disputes through Arbitration. Since the parties were not able to arrive at a consensus regarding the appointment of the Arbitrator, this Arbitration Request has been filed. 2. Respondent has entered appearance and filed a counter-affidavit. The contentions of the applicant are stoutly denied. 3. Heard the learned counsel on either side. 4. Clause 3(e) of Annexure A agreement reads **A.R NO.16 OF 2021** 3 ## thus : _"Any dispute or difference of any nature whatsoever or regarding any rights, liability, act, omission or account of any of the parties hereto arising out of or in relation to agreement shall be referred to the sole arbitration of the Chairman and Managing Director/Director (M) of the Corporation or some Officer of the Corporation who may be nominated by them. The Lessor will not be entitled to raise any objection to the appointment of such officer of the Corporation as the sole arbitrator on the ground that the said Officer is an officer of the Corporation or that he/she has to deal or dealt with the matter to which the contract relates or that in the course of his duties/as an officer of the Corporation he/she has/had expressed views on all or any of the matters in dispute or difference. In the event of the arbitrator to whom the matter is originally referred is being transferred or vacating his/her office or being unable to act for any reasons, the Chairman and Managing Director/Director(M) as aforesaid shall designate another officer to act as arbitrator. Such officer shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other that the Chairman and Managing Director/Director (M) or a_ **A.R NO.16 OF 2021** 4 _person nominated by Chairman and Managing Director/Director(M) of the Corporation as aforesaid shall not an arbitrator._ _The award of the arbitrator shall be final, conclusive and binding on all the parties to the agreement subject to the provisions of the Arbitration Act, 1940 and the rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause._ _The award shall be made in writing and published by the Arbitrator within six months after entering upon the reference or within such extended time not exceeding further four months as the sole arbitrator shall by in writing under his own hand appoint. The arbitrator shall have power to order and direct either of the parties to abide by, observe and perform all such directions as the arbitrator may think fit having regard to the fact that the arbitration proceedings have to be completed within the specified period solely on the principles of Natural Justice._ _The arbitrator shall be at liberty to appoint if necessary any accountant or engineering or other technical person to assist him and to act by the opinion so taken._ _The arbitrator shall have power to make one or more awards whether interim or otherwise in respect of the dispute and difference and in particular will be_ **A.R NO.16 OF 2021** 5 _entitled to make separate awards in respect of claims or cross claims of the parties._ _The arbitrator shall be entitled to direct any of the parties to pay the costs of the other party in such manner and to such extent as the arbitrator may in his discretion determine and shall also be entitled to require one or both the parties to deposit funds in such proposition to meet the arbitration expenses whenever called upon to do so._ _The parties hereby agree that the courts in the town of Ernakulam alone shall have jurisdiction to entertain any application or other proceedings in respect of anything arising under this agreement and any award or awards made by the sole arbitrator hereunder shall be filled in the concerned courts in the town of Ernakulam only. "_ 4. In the light of the amended Section 12(5) of the Arbitration and Conciliation Act, 1996, the Chairman or Director or anybody nominated by him cannot be appointed as the Arbitrator. The Apex Court has in the cases of _**TRF Limited v. Energo Engineering Projects Limited ((2017) 8 SCC 377**_ and _**Perkins Eastman Architects DPC and Another v. HSCC (India) Limited ((2020) 20 SCC 760)**_ categorically held so. **A.R NO.16 OF 2021** 6 Therefore, the person mentioned in the clause quoted above cannot be nominated. 5. The respondent urges various other grounds of challenge, viz.; (i) Jurisdiction of the Arbitrator do decide on the issue, (ii) Limitation, and (iii) that the respondent being the landlord has the right to evict the applicant. All these are matters to be urged before the Arbitrator. 6. The rival contentions of the parties are left open to be agitated before the learned Arbitrator. Accordingly, the arbitration request is ordered as hereunder:- (a) Retd. Justice M.Sasidharan Nambiar, 'Swapnam', Amritha Lane, Near Puthenkulangara Temple, Eroor North P.O., Kochi – 682 306 is nominated provisionally as the Sole Arbitrator to adjudicate upon the disputes between the parties arising out of Annexure A agreement. (b) A copy of this order shall be communicated to the learned Sole Arbitrator by the Advocate of the applicant within a period of one week from today. A **A.R NO.16 OF 2021** 7 copy of the order shall also be forwarded to the learned Sole Arbitrator by the Registry. (c) The Arbitrator is requested to forward the statement of disclosure under Section 11(8) r/w Section 12(1) of the Arbitration and Conciliation Act,1996. (d) The Registry shall place the disclosure statement before this Court, for confirmation of the appointment of the Arbitrator. (e) The Arbitrator's fees shall be payable as per IV[th] Schedule to the Arbitration and Conciliation Act, 1996. **Sd/Sathish Ninan, Judge** amk **A.R NO.16 OF 2021** 8 ## **APPENDIX OF AR 16/2021** **PETITIONER'S ANNEXURES :** **ANNEXURE A A TRUE COPY OF THE LEASE DEED DATED 23.12.1994. ANNEXURE B A TRUE COPY OF THE LETTER DATED 01.12.2011. ANNEXURE C A TRUE COPY OF THE REPLY DATED 08.06.2012. ANNEXURE D A TRUE COPY OF THE ORDER DATED 28.05.2015 IN I.A.NO.4670/2013 OF SUB COURT, ERNAKULAM. ANNEXURE E A TRUE COPY OF THE NOTICE INVOKING ARBITRATION CLAUSE DATED 16.01.2021. ANNEXURE F A TRUE COPY OF THE REPLY DATED 30.01.2021.**