Nelson P.S. v. K.V. Anilkumar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943** **AR NO. 103 OF 2020** **PETITIONER:** **NELSON.P.S., AGED 29 YEARS, PROPRIETOR, SEBAN CONSTRUCTION DOOR NO.16/34, KAIPADAMUGAL, VADACODE P.O., KALAMASSERY, ERNAKULAM, PIN - 682 021.** **BY ADVS. M.S.UNNIKRISHNAN SRI.V.S.SREEJITH SRI.K.SUNIL SRI.RINU. S. ASWAN SMT.M.ARDRA KRISHNAN SMT.ALEENA MARIA JOSE SMT.SUSAN JACOB (S-3481)** ## **RESPONDENTS:** **K.V.ANILKUMAR, KODATH HOUSE, OLD DESOM ROAD, NEDUVANNOOR, CHOWARA P.O., ALUVA - 683 108.** **BY ADV SRI.S.SHANAVAS KHAN SMT.S.INDHU** **THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON** **05.01.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **AR NO. 103 OF 2020** **-2-** ## **ORDER** The petitioner, who is a Railway Contractor, states that he had entered into Annexure A2 Agreement with the respondent, who had been earlier awarded a contract, for doubling of the railway track between 'Chengannur' and 'Chingavanam', by the Southern Railway. He says that Annexure A2 Agreement was entered into after he was issued with Annexure A1 offer letter and that he had completed the work as per its terms without any fault. 2. The petitioner alleges that, however, even though he has been paid an amount of Rs.31,78,000/- by the respondent, he has refused to release to him the balance amount of Rs.20,87,326/-; and therefore, that he was constrained to issue Annexure A4 notice to the respondent, seeking that either his claims be ## **AR NO. 103 OF 2020** **-3-** honoured, or that a competent Arbitrator be appointed, because, under the rigour of Clause 22 of Annexure A2 Agreement, all disputes between them relating to its terms, can only be adjudicated and resolved through the mechanism of Arbitration. 3. The petitioner says that, however, even though the respondent accepted Annexure A4, he has chosen not to respond to it; thus constraining him to approach this Court through this Arbitration Request, invoking Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act', for short). 4. The afore submissions of the petitioner, as argued by his learned counsel - Smt.Aleena Maria Jose, were answered by Smt.S.Indhu – learned counsel appearing for the respondent, saying that the claim as impelled by the petitioner in Annexure A4 notice, as also before this Court, is ## **AR NO. 103 OF 2020** **-4-** absolutely untenable and that he is not eligible to obtain any further amounts under Annexure A2 Agreement from her client. She submitted that since no amounts are due from her client, no disputes can be construed to be arisen between the parties and therefore, prayed that this arbitration request be dismissed. She then added that a reply was caused to Annexure A4 by her client, but conceded that it has not been produced on record. 5. I have evaluated the afore submissions and have also gone through the materials available on record. 6. It is indisputable that the petitioner had issued Annexure A4 notice to the respondent, seeking that the amounts under his final bill be honoured or that the disputes between the parties be referred to a sole Arbitrator. Though the respondent says he had issued a reply to it, he ## **AR NO. 103 OF 2020** **-5-** has chosen not to produce it on record; but takes a stand that no amounts are due to the petitioner. 7. It is, therefore, obvious that there are disputes between the parties, which, on account of the arbitration Clause in Annexure A2, will require to be adjudicated and resolved through the process of arbitration. 8. Presumably, being aware of the mind of this Court as afore, Smt.S.Indhu submitted that if this Court is inclined to allow this arbitration request, then a retired District Judge be considered for being nominated as the sole Arbitrator, so that all the disputes between the parties, including the question whether any amounts are due to the petitioner, can be decided by the said Authority without any further delay. 9. Before I tread forward, I must certainly examine Annexure A2 Agreement and verify whether there is a binding arbitration Clause between the ## **AR NO. 103 OF 2020** **-6-** parties. As is admitted by the parties, Clause 22 of Annexure A2 provides that all disputes between them, relating to or touching upon the terms of the said Agreement, be resolved only through the process of arbitration. The said Clause, of course, also provides that the Arbitrator shall be appointed by the respondent. However, in view of the introduction of Section 12(5) into the Act and on account of the affirmative declarations of the Hon’ble Supreme Court in _**Perkins Eastman**_ _**Architects DPC & Another v. HSCC (India) Limited**_ [AIR 2020 SC 59], which was followed by this Court in _**Tulsi Developers India Pvt. Ltd. v. Dr.Appu Benny Thomas**_ [2021 (5) KHC 404], it is now inescapable that no party to an Agreement can either arbitrate or appoint an Arbitrator on his own. 10. I am, therefore, certain that even though Clause 22 of the Arbitration Clause binds the ## **AR NO. 103 OF 2020** **-7-** parties to the extent to which their disputes will have to be resolved through the process of Arbitration, the further covenant therein that said Arbitrator shall be appointed by the respondent will have to fail and disregarded by this Court. Resultantly, I allow this Arbitration Request in the following manner: (a) I nominate Sri.Thomas Pallickaparambil, Evas' House, River Gate Apartments, Manakkad P.O., Thodupuzha, PIN-685 608, as the sole Arbitrator, to adjudicate and resolve the disputes and differences between the parties to this case arising from and relating to Annexure A2 Agreement. **==> picture [313 x 13] intentionally omitted <==** communicate a copy of this order to ## **AR NO. 103 OF 2020** **-8-** 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 Act'. - (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 and Conciliation Act, 1996. **==> picture [313 x 13] intentionally omitted <==** **==> picture [313 x 13] intentionally omitted <==** **AR NO. 103 OF 2020** **==> picture [22 x 9] intentionally omitted <==** arbitration costs and fees equally and it is so recorded. (f) In order to enable the Arbitrator to commence the proceedings without delay, I direct the parties to mark appearance before him at 11 A.M. on 28.01.2022. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **-10-** ## **AR NO. 103 OF 2020** ## **APPENDIX OF AR 103/2020** ## **PETITIONER ANNEXURES** |**ANNEXURE A1**|**TRUE COPY OF THE WORK ORDER DATED**| |---|---| ||**11.12.2018 ISSUED BY THE DEPUTY CHIEF**| ||**ENGINEER CONSTRUCTION II,**| ||**THIRUVANANTHAPURAM**| |**ANNEXURE A2**|**TRUE COPY OF THE AGREEMENT DATED 18TH**| ||**FEBRUARY, 2019 EXECUTED BETWEEN THE**| ||**PETITIONER AND THE RESPONDENT**| |**ANNEXURE A3**|**TRUE COPY OF THE 1ST AND 2ND RA BILL**| ||**DATED 27.6.2019**| |**ANNEXURE A4**|**TRUE COPY OF THE LETTER DATED 28TH**| ||**SEPTEMBER, 2020 ISSUED BY THE**| ||**PETITIONER TO THE RESPONDENT DEMANDING**| ||**THE BILL AMOUNT.**| |**ANNEXURE A5**|**TRUE COPY OF THE TRACK CONSIGNMENT**| ||**REPORT OF INDIA POST**|