SB Construction & Travels, Engineering Contractor and Tour Operators, Mundackal v. Simplex Infrastructure Ltd., BPCL-MSBP Site, Kochi Refinery Project

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 1[ST] DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943 AR NO. 107 OF 2021 ``` ## **`APPLICANTS:`** ``` 1M/S SB CONSTRUCTION & TRAVELS, ENGINEERING CONTRACTOR AND TOUR OPERATORS, MUNDACKAL, PARAPILLI ROAD, THIRUVANKULAM P.O., ERNAKULAM DISTRICT - 682 305 REPRESENTED BY ITS MANAGING PARTNER, SRI.SHIJU JOSEPH, S/O.JOSEPH, AGED 52 YEARS, MUNDACKAL, PARAPILLI ROAD, THIRUVANKULAM P.O., ERNAKULAM DISTRICT - 682 305. ``` ``` 2SRI.SHIJU JOSEPH, AGED 52 YEARS, S/O.JOSEPH, MUNDACKAL, PARAPILLI ROAD, THIRUVANKULAM P.O., ERNAKULAM DISTRICT - 682 305. ``` ``` BY ADVS. PAUL K.VARGHESE A.A.GEETHA ``` ## **`OPPOSITE PARTIES:`** ``` 1SIMPLEX INFRASTRUCTURE LTD., BPCL MSBP SITE, KOCHI REFINERY PROJECT, AMBALAMUGAL, ERNAKULAM - 682 302 REPRESENTED BY ITS MANAGING DIRECTOR, HAVING OFFICE AT NEW NO.48 NEW (OLD NO.21), CASA MAJOR ROAD,EGMORE, CHENNAI - 600 008, SIMPLEX HOUSE, 27, SHAKESPEARE SARANI, KOLKATA - 700 017. ``` ``` 2THE MANAGING DIRECTOR/CHIEF EXECUTIVE OFFICER,, SIMPLEX INFRASTRUCTURE LIMITED, BPCL-MSBP SITE, KOCHI REFINERY PROJECT, AMBALAMUGAL, ERNAKULAM DISTRICT-682302. ``` AR 107/21 2 ## **`GARNISHEE/RESPONDENTS`** - `1 CHIEF EXECUTIVE OFFICER/ASSISTANT EXECUTIVE DIRECTOR, BPCL-MSBP SITE, KOCHI REFINERY PROJECT, AMBALAMUGAL, ERNAKULAM DISTRICT-682302.` - `2 THE EXECUTIVE DIRECTOR PROJECT/CHIEF GENERAL MANAGER PROJECT, BPCL-MSBP SITE, KOCHI REFINERY PROJECT, AMBALAMUGAL, ERNAKULAM DISTRICT-682302.` ``` THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` AR 107/21 3 ## **`O R D E R`** The 1[st] applicant, which is stated to be a proprietary concern, along with the 2[nd] applicant – who is said to be its Managing Partner, says that they had entered into Annexures I and II Work Order with the opposite party - which is a company incorporated under the provisions of the Companies Act, 1956; and that though they had completed their obligations under them satisfactorily, disputes arose between them, singularly because the 1[st] opposite party did not abide by their commitment to pay the amounts under the Work Order. 2. The applicants say that, they, therefore, preferred Annexure IV notice to the 1[st] opposite party, seeking that either their claim be honoured or the disputes be referred to a sole Arbitrator since, going by Clause 22 of Annexure I Work Order, any difference or dispute arising out of or in connection with it can only be adjudicated and resolved through the process of AR 107/21 4 Arbitration. They, however, concede that, as per the Arbitration Clause, the Arbitrator is to be appointed by the Managing Director of the 1[st] opposite party; but contend that, on account of various judgments of the Hon'ble Supreme Court, including in TRF Ltd. v. Energo Engineering Projects Ltd . [2017 (8) SCC 377] and Perkins Eastman Architects DPC and another v. HSCC (India) Ltd. [2019 SCC Online 1517], which have been followed by this Court in Tulsi Developers India Pvt.Ltd. v. Dr.Appu Benny Thomas [2021(5) KLT 339], such a nomination is now impossible and therefore, that they have been constrained to approach this Court invoking jurisdiction under Section 11 of the Arbitration Conciliation Act, 1996 (hereinafter referred to “Act” for short). 3. The endorsements on the file show that even though notices were issued to the opposite parties, they were returned with the endorsement ‘left’; and consequently, permission was granted to the applicants to take out notice to them through E- mail available in the Master Data maintained by the Registrar of AR 107/21 5 Companies. A memo has been filed by the applicants saying that notice through E-mail has been completed on the respondents, but there is no appearance on their behalf nor are they present in person. 4. I have examined Annexures I and II, which are the Work Orders between the parties and it is indubitable that Clause 22 of Annexure I provides that any dispute arising from its terms or relating to it shall have to be adjudicated and resolved only through the process of arbitration. 5. Since the applicants say that their Annexure VI request has been disregarded by the opposite party, I am of the view that this Court is enjoined to allow this Arbitration Request. 6. That said, however, since Work Orders have been entered into by the applicants with the first opposite party, it is not necessary that the other opposite parties be involved. In the afore circumstances, I allow this Arbitration Request in the following manner: AR 107/21 6 (a) I nominate Sri.Abraham Vakkanal, Vakkanal House, Cherupushpam Lane, Opp L.F. Church, Kadavanthra, Cochin – 682 020, as the sole Arbitrator to adjudicate and resolve the disputes and differences between the parties to this case arising from Annexure I and II Work Orders. (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 to the Arbitration and Conciliation Act, 1996. (e) In order to enable the Arbitrator to commence the AR 107/21 7 proceedings without delay, I direct the parties to mark appearance before him at 11 a.m. on 24.02.2022. Since the respondents are remaining ex parte in this proceedings, the learned Arbitrator shall notify them of this date, or a future date, appropriately. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` AR 107/21 8 ## **`APPENDIX OF AR 107/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure ITRUE COPY OF THE WORK ORDER NO.012/PC/BPCLKOCHI/C3227/WO/001/VOL. 1/950224 DATED 12/07/2018. Annexure IIA TRUE COPY OF THE WORK ORDER NO.011/BPCL.MSBPKL/PL/PMC/MD/001/VOL- 01/2021 DATED 07/05/2018. ``` ``` Annexure IIIA TRUE COPY OF THE LETTER ISSUED BY THE APPLICANTS TO THE OPPOSITE PARTIES DATED 02/11/2020. ``` ``` Annexure IVA TRUE COPY OF THE LAWYER NOTICE ISSUED BY THE APPLICANTS TO THE OPPOSITE PARTIES DATED 21/4/2021. ``` ``` Annexure VA TRUE COPY OF THE LETTER ISSUED BY THE 1ST AND 2ND OPPOSITE PARTIES TO THE GARNISHEE DATED 15/7/2019. Annexure VIA TRUE COPY OF THE ARBITRATION REQUEST MADE BY THE APPLICANT DATED 05/10/2021. ```