M/S P.C. THOMAS & CO., Engg. Contractors v. The Superintending Engineer, Lakshadweep PWD, Kavrathy, UT Lakshadweep; The Executive Engineer, Lakshadweep PWD Division, Kalpeni, UT Lakshadweep

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** ## **THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932** **RP.No. 126 of 2010()** **-----------------------------AGAINST THE JUDGMENT/ORDER IN AR.40/2006 DATED 17/07/2009** **....................** ## **REVIEW PETITIONERS/RESPONDENTS:** **----------------------------------------------------------** **1. THE SUPERINTENDING ENGINEER, LAKSHADWEEP PWD, KAVARATHY, UNION TERRITORY OF LAKSHADWEEP.** **2. THE EXECUTIVE ENGINEER, LAKSHADWEEP PWD DIVISION, KALPENI, UNION TERRITORY OF LAKSHADWEEP.** **BY ADV. SRI.S.RADHAKRISHNAN, SC, LAKSHADWEEP ADMN** ## **RESPONDENT/APPLICANT:** **-----------------------------------------** **M/S.P.C.THOMAS & CO., ENGG. CONTRACTORS, PUTHUSSERY HOUSE, MAMANGALAM, ERNAKULAM, KOCHI-682 025. REPRESENTED BY ITS MANAGING PARTNER.** **BY SRI.P. JACOB VARGHESE, SENIOR ADVOCATE. ADV. SRI.VIVEK VARGHESE P.J.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10/03/2011, ALONG WITH R.P. NO.127 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs** ## Thottathil B.Radhakrishnan, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P.126/2010 in A.R.40/2006, R.P.127/2010 in A.R.41/2006, R.P.128/2010 in A.R.42/2006, R.P.129/2010 in A.R.43/2006, R.P.130/2010 in A.R.44/2006, R.P.131/2010 in A.R.45/2006, R.P.132/2010 in A.R.46/2006, R.P.133/2010 in A.R.47/2006, R.P.134/2010 in A.R.48/2006, R.P.135/2010 in A.R.49/2006, R.P.136/2010 in A.R.50/2006, R.P.137/2010 in A.R.51/2006 & R.P.138/2010 in A.R.52/2006 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10[th] day of March, 2011. ## Order 1.These petitions are filed by the Superintending Engineer and the Executive Engineer of the Public Works Department of Union Territory of Lakshadweep seeking review of the common order issued on 17[th] July, 2009, in a bunch of Arbitration Requests between the same parties, whereby this Court exercising power under Section RP126/10 & con.cases -: 2 :- - 11(6) of the Arbitration and Conciliation Act, 1996, appointed Mr.Justice K.John Mathew, a former Judge of this Court as the sole arbitrator in all those cases, to be assisted with technical expertise of a former Engineer of the PWD in the Government of Kerala. - 2.Special Leave Petitions were filed before the Hon'ble Supreme Court of India against the aforesaid common order. As seen from Annexure-2 in R.P.126/2010, those SLPs were dismissed as withdrawn on 18.1.2010. The petitioners in the SLPs had sought permission to withdraw the SLPs with liberty to approach the High Curt for clarification/modification of the impugned order (emphasis supplied). The Apex Court ordered that if any such application is filed within a period of one week, the High Court would consider and dispose of the same expeditiously(emphasis supplied). - 3.Thereafter, these applications seeking review of the order issued on 17[th] July, 2009 are filed. Counter affidavits are filed. The matters have been argued collectively. I have heard the RP126/10 & con.cases -: 3 :- learned counsel for the review petitioners and also the learned Senior Counsel appearing for the respondents in these review petitions. - 4.The existence of an arbitration clause is not in dispute. By order issued by this Court, by the then Hon'ble the Chief Justice, on 10[th] January, 2007, the arbitration requests were allowed and a sole arbitrator was appointed. That order was set aside by the Apex Court, while disposing of a bunch of matters, reported as Northern Railway Administration, M.R., N.Delhi v. P.E.Company[2008 (11) SCALE 500]. The matters stood remitted for re-consideration by this Court. - 5.Thereafter, the common order sought to be reviewed was passed. In doing so, the requirement pointed out by the Apex Court in the aforesaid precedent was applied. In matters relating to cases where technical issues are involved, the choice of the arbitrator or choice of technical adviser also needs to be made. It was accordingly that a retired Engineer of Public Works Department in the Government of Kerala was appointed to assist the former Judge of this RP126/10 & con.cases -: 4 :- Court who was appointed as sole arbitrator as per the common orders sought to be reviewed. - 6.At the outset, let it be noted that the credibility and ability of the arbitrator and the competence of the expert are not challenged. 7.In support of the applications for review, the learned counsel for the review petitioners argued that in terms of the provisions of Clause 25 of the Agreement, the question of making a reference for arbitration would arise only on satisfaction of the conditions required in the initial portions of Clause 25(i); bereft of that, the jurisdictional fact for the Chief Justice or his nominee to make the appointment would not arise. The condition is that if the contractor has any complaint or claim in relation to the work or amounts due in connection therewith, he has to first move the Superintending Engineer and appeal to the Chief Engineer against any decision of the Superintending Engineer and only if the Chief Engineer does not reply in a time bound manner as prescribed, or if the answer of the Chief Engineer is adverse to the interest of the RP126/10 & con.cases -: 5 :- contractor, would the contractor be eligible to claim reference to arbitration. If the Chief Engineer is not in office, the Administrative Head of the PWD in the Union Territory shall be the competent authority in lieu of Chief Engineer, it is pointed out. It is further pointed out that this aspect of the matter is not considered in the order sought to be reviewed and the fact that the claim was barred by limitation had also escaped consideration. In support of the plea that request for arbitration is barred by limitation, the contention is that such request ought to be made within a period of 120 days from the date on which the contractor is intimated that the final bill is ready for payment. According to the review petitioners, this event occurred long before the delivery of the request for arbitration on 6.6.2006. The learned counsel for the review petitioners points out that as regards the choice of the arbitrator, this Court had erroneously noted in the impugned order that the choice of Mr.Justice K.John Mathew is on the basis of suggestion of both sides, however that there was no consent by the review petitioners or their counsel either as regarding the RP126/10 & con.cases -: 6 :- availability of recourse to arbitration or as to the identity of the arbitrator. He says that the aforesaid portion of the order sought to be reviewed may even tend to indicate that the counsel had, on behalf of the review petitioners, conceded to the existence of the arbitration clause and the existence of an arbitral dispute, as also, cause of action for making an appointment and having a measure taken thereby in accordance with Section 11(6) of the Arbitration and Conciliation Act, 1996. The petitioners' counsel referred to the judgments in Northern Railway Administration(supra) and also Jain Studios Ltd. v. Shin Satellite Public Co.Ltd.[AIR 2006 SC 2686], Eastern Coalfields v. Joscon [(2003) 12 SCC 339], SBP & Co. v. Patel Engineering Ltd.[(2005) 8 SCC 618], National Highways Authority of India v. Bumihiway DDB Ltd. [(2006) 10 SCC 763] and India Household and Healthcare Ltd. LG Household and Healthcare Ltd. [(2007) 5 SCC 510] to argue that the parameters of Section 11(6) have been exceeded and the order sought to be reviewed has been issued in excess of jurisdiction. The learned counsel for the review petitioners further pointed out that the RP126/10 & con.cases -: 7 :- file of the establishment appears to indicate that there are materials available with it to show that the arbitration claim is time barred in terms of the agreement between the parties. 8.Per contra, learned senior counsel appearing for the respondent points out that there can be no application for review inasmuch as the review petitioners had unsuccessfully challenged the order sought to be reviewed by filing SLPs which ultimately were dismissed as withdrawn and what could ultimately remain on the basis of the order of the Hon'ble Supreme Court issued on 18.1.2010 is for the High Court to consider and dispose of any application for clarification or modification and not beyond. He says that under the garb of an application for clarification or modification, the review petitioners cannot have the matter reargued as if it were an appeal or even for a consideration as to whether there is an error apparent on the face of the record of the order sought to be reviewed because it has to be treated as one that has attained finality with the dismissal of the SLPs. He points out that the decisions of the Apex Court in Sow Chandra Kante RP126/10 & con.cases -: 8 :- v. Sheikh Habib[(1975) 1 SCC 674], Northern India Caterers(India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167] and Jain Studios Ltd. v. Shin Satellite Public Co.Ltd.[AIR 2006 SC 2686] clearly point out the requirement for the courts to maintain extreme reluctance to permit a rehearing of issues in the guise of an application for review of judgment. This submission is made notwithstanding the earlier argument that an application for review itself would not lie on the basis of the dismissal of the SLPs as withdrawn and that what has been left open is only the review petitioners' right to have any application filed seeking modification or clarification. He further argued that the question of limitation was never raised or argued during the course of consideration of the matter leading to the order sought to be reviewed. He also argued that having regard to the finality attained by the order sought to be reviewed, the second paragraph of that order is essentially immune from challenge under the guise of seeking a clarification or modification. He further argued that the materials on record may tend to indicate that the plea that the proceedings are RP126/10 & con.cases -: 9 :- barred by limitation is unsustainable. 9.With the aforesaid, it needs to be noted that clause 25 of the Agreement between the parties was adverted to, considered and construed by this Court while passing the order sought to be reviewed. In paragraph 2 of that order, reference is made to clause 25 also by saying that the factual situation at sub-clause (ii) would come only on satisfaction of the conditions under subclause (i). This is what is meant by the second sentence in the second paragraph of the order sought to be reviewed, while it was stated therein that “the requirement is that when it reaches the stage of clause 25(ii), the disputes or difference shall be referred for adjudication through arbitration..........”. Therefore, even if it is to be treated that the order sought to be reviewed contains an erroneous consideration or interpretation of the agreement clause, that is not a matter that could be raked up for review. 10.In so far as the question of limitation is concerned, there is no specific plea in the RP126/10 & con.cases -: 10 :- counter statement filed by the review petitioners to the arbitration request raising any plea of limitation and pitching it on any particular fact situation or data with reference to which the plea of limitation could have been answered in their favour. Obviously, therefore, such an issue cannot be agitated for the first time in an application for review. 11.To cap all these, is the fact that the dismissal of the SLPs as withdrawn results in nonavailability of further challenge to the order sought to be reviewed. What was preserved by the Hon'ble Supreme Court is only the entitlement, if any, of the review petitioners to seek modification/clarification. Therefore, even an application for review could not be entertained. Yet, in the realm of modification/clarification, it needs to be stated that while making the choice of the arbitrator and appointing Mr.Justice K.John Mathew, a former Judge of this Court as the sole arbitrator, all that is meant by saying, “on suggestion by both sides”, was that the submissions made by the learned counsel on either side as regards the scope of the work RP126/10 & con.cases -: 11 :- in question were considered and the choice of Mr.Justice K.John Mathew as made by this Court was expressed in court. May be, instead of the word “suggestion”, the word “submission” could have been used. Even that would relate only to submissions attendant to the scope of the work in question and in terms of the contract because those are the relevant factors that would enable the Hon'ble Chief Justice or his Nominee to ascertain the choice to be made as regards appointment, following the law laid in Northern Railway Administration(supra). It is recorded that the learned standing counsel for the review petitioners had not made any consent or concession either on law or on facts while arguing the arbitration requests. 12.With this, it needs to be stated that all issues between the parties, including any plea as to bar of limitation as regards the whole or any part of the claim before the learned arbitrator stands left open for consideration in the arbitration proceedings. In the result, subject to the aforesaid, these RP126/10 & con.cases -: 12 :- review petitions fail. They are accordingly dismissed. Sd/- Thottathil B.Radhakrishnan, Judge. Sha/1903 -true copy- P.S.to Judge.