Infra Elevators India Private Limited v. Bharat Sanchar Nigam Limited and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 20[TH] 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 1[st] 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. ## **AR NO. 4 OF 2021 4** 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 4[th] respondent was so nominated and appointed on 28.09.2020. They say that the 4[th] 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 4[th] 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 – ## **AR NO. 4 OF 2021 5** BSNL and the learned Assistant Solicitor General – Shri.P.Vijayakumar, appearing for the 3[rd] 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 ## **AR NO. 4 OF 2021 6** 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 4[th] respondent was nominated. However, admittedly, 4[th] 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 4[th] 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. ## **AR NO. 4 OF 2021 7** 9. I am afraid that I cannot accede to the afore request of Shri.R.Sudhish, because the Union of India has named the 4[th] 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 4[th] 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 ## **AR NO. 4 OF 2021 8** 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 ## **AR NO. 4 OF 2021 9** and Conciliation Act, 1996. **==> picture [392 x 12] intentionally omitted <==** 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** ## **AR NO. 4 OF 2021 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.|