High Court of KeralaSingle JudgeArbitration request allowed; sole arbitrator ap...

Sreedharan K. v. The District Tourism Promotion Council, Wayanad

Case / Petition Number:AR NO. 13 OF 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Devan Ramachandran
Judgment Date
2021-09-07
Court Decision / Holding
Arbitration Request allowed; sole arbitrator appointed: M.G.T. Building, Kalpetta North P.O., Wayanad – 673 122, as the sole arbitrator to adjudicate disputes under Annexure 2. The order directs the arbitrator’s disclosure under Section 11(8) read with Section 12(1), certification of the order, and appearance before the arbitrator at 11 A.M. on 13.10.2021. The arbitrator’s fees will be governed by the Fourth Schedule of the Act.
Final Disposition
Arbitration request allowed; sole arbitrator appointed and directed to proceed with disclosures and appearance; mediation and arbitration sequence to be observed as per law and annexures.

Parties to the Case

Appellants / Petitioners

  • Sreedharan K.

Respondents

  • The District Tourism Promotion Council, Wayanad

Legal Representation & Advocates

Counsels for Petitioners

  • • P. C. Chacko (Parathanam)
  • • Smt. Asha P. KuriaKose
  • • Smt. Rejitha Rajan

Counsels for Respondents

  • • K. Krishna Prasad
  • • Smt. Rohini Nair

Case Synopsis & Summary

This matter concerns an Arbitration Request under Section 11 of the Arbitration and Conciliation Act, 1996, filed by Sreedharan K. against The District Tourism Promotion Council, Wayanad, seeking appointment of a sole arbitrator in disputes arising from Annexure 2 agreement governing the provision of three units—‘Swiss Cottage Tents’, ‘Mud Cottages’ and a roof top restaurant—at the Wayanad Adventure Camp, Karalad Lake, for a period of three years. The petitioner contends that several disputes have arisen under Annexure 2 and, as per Clause 4, these disputes must first be resolved through mediation before arbitration. He points to Ext. P10 to show the respondent’s refusal to accede to either mediation or appointment of an arbitrator, arguing such stand is untenable in law. The respondent counters that mediation must be attempted first under Clause 4 and that, even if arbitration is permissible, the respondent should nominate an arbitrator since Clause 4 prescribes that authority. The petitioner relies on this Court’s rulings in TRF Ltd. v Energo Engineering Projects Ltd. and Tulsi Developers India Pvt. Ltd. v Appu Benny Thomas to urge that a party to the dispute cannot appoint an arbitrator. The Court ultimately held that the respondent cannot arbitrate and appointed a sole arbitrator, with procedural directions, including disclosure under the relevant sections and a date for appearance.

Provisions of Law Cited

Arbitration and Conciliation Act, 1996 – Section 11Arbitration and Conciliation Act, 1996 – Section 11(8) read with Section 12(1)Arbitration and Conciliation Act, 1996 – Fourth Schedule

Legal Doctrines & Maxims

  • Mediation is a pre-condition to arbitration under Clause 4 of Annexure 2
  • A party to disputes cannot arbitrage or appoint an arbitrator when disputes are pending; the court under Section 11 must appoint the arbitrator
  • Reliance on TRF Ltd. v Energo Engineering Projects Ltd. (2017) and Tulsi Developers India Pvt. Ltd. v Appu Benny Thomas as guiding principles in arbitration proceedings

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that disputes between the parties arise from Annexure 2 and must be referred to arbitration only after the mediation stage prescribed by Clause 4. Citing TRF Ltd. v Energo Engineering Projects Ltd. and Tulsi Developers India Pvt. Ltd. v Appu Benny Thomas, the petitioner contends that the respondent, being a party to the disputes, cannot arbitrate or appoint an arbitrator. Therefore, the court should appoint a sole arbitrator under Section 11, notwithstanding the respondent’s stance, and direct disclosure under Sections 11(8) and 12(1). He emphasizes the respondent’s initial refusal to engage in mediation as per Ext. P10 and seeks a swift appointment to avoid further delay in resolution of the disputes.

Contentions of Respondents

The respondent argues that Clause 4 of Annexure 2 requires disputes to be resolved first through mediation, and if not settled, then referred to arbitration. They contend only the respondent can nominate an arbitrator under the clause, and mediation involving the Thariyode Grama Panchayat authorities is necessary. They request the court to permit their client to nominate a suitable arbitrator if arbitration is allowed, and they challenge the petitioner’s interpretation, asserting that mediation must precede any arbitration and that the respondents should be involved in the selection of the arbitrator.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
TRF Ltd. v Energo Engineering Projects Ltd.2017 (8) SCC 377PositiveCited to support the proposition that respondents cannot arbitrate where they are party to the disputes and that the court must appoint an arbitrator under Section 11.
Tulsi Developers India Pvt. Ltd. v. Appu Benny Thomas[AR No.105 of 2020]PositiveCited as authority reinforcing that disputes involving the party-litigant cannot self-appoint an arbitrator; mediation and court appointment principles apply.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943** **AR NO. 13 OF 2021** ## **PETITIONER:** **SREEDHARAN K., AGED 67 YEARS S/O. PERACHAN, KOTHARI HOUSE, RAMANATTUKARA P.O., KOZHIKODE - 673633.** **BY ADVS. P.C.CHACKO(PARATHANAM) SMT.ASHA P.KURIAKOSE SMT.REJITHA RAJAN** **RESPONDENT:** **THE DISTRICT TOURISM PROMOTION COUNCIL, WAYANAD, REPRESENTED BY ITS MEMBER SECRETARY, KALPETTA P.O., WAYANAD DISTRICT - 673 122.** **BY ADVS. KRISHNA PRASAD. S ROHINI NAIR** **THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON** **07.09.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **AR NO. 13 OF 2021** **-2-** ## **ORDER** This request for appointment of a sole Arbitrator, has been filed by the petitioner invoking the provisions of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’, for short), on the assertion that various disputes have arisen between him and the respondent with respect to Annexure 2 agreement, entered into between them, in running ‘ _ten Swiss Cottage Tents_ ’, ‘ _4 Mud_ _Cottages'_ and ' _the roof top restaurant_ ’ at Wayanad Adventure Camp at Karalad Lake, which is owned by the respondent, for a period of three years. 2. The petitioner says that since several disputes are still subsisting between him and the respondent with respect to Annexure 2 Agreement; and since it specifically provides, through Clause 4 thereof, that same can only be resolved through ## **AR NO. 13 OF 2021** **-3-** the mechanism of Arbitration, he addressed the respondent by issuing Annexure 9 letter requesting them to either accede to his claims or to appoint an Arbitrator nominated by its Executive Committee within a period of 15 days. He says that his afore requests were met by Ext.P10 reply, wherein, the respondents refused to accede to either saying that Clause 4 of the agreement provides for a conciliation, prior to Arbitration. The petitioner says that stand of the respondent in Annexure 10 reply is untenable in law and thus prays that this Court appoint a sole Arbitrator in terms of Annexure 2 agreement without any further delay. 3. I have heard Sri.P.C.Chacko – learned counsel for the petitioner and Sri.S.Krishna Prasad – learned counsel appearing for the respondent. 4. Sri.S.Krishna Prasad, began his submissions, in opposition to the petitioner’s ## **AR NO. 13 OF 2021** **-4-** plea, saying that, as is evident from Clause 4 of Annexure 2, every disputes will have to be resolved initially through mediation; and if it is not settled in such manner alone, can they be referred to an Arbitrator. He added that, in any event of the matter, the appointment of an Arbitrator can only be done by his client because the said Clause provides so specifically. He, therefore, prayed that if this Court is so inclined to allow this Arbitration Request, then his client be permitted to nominate a suitable Arbitrator, so that said Authority can then consider the disputes and resolve it. 5. In reply, Sri.P.C.Chacko – learned counsel appearing for the petitioner, submitted that the stand of the respondent that the disputes ought to have been resolved through mediation cannot be conceded for even one moment because, as is evident from Ext.P10, the respondent themselves ## **AR NO. 13 OF 2021** **-5-** says that the Secretary and President of Thariyode Grama Panchayat are necessary and that it is only with their support can the disputes between the parties be resolved in the mediation. He contended that it is not something which is possible under the terms of the Annexure 2 agreement. 6. The learned counsel for the petitioner further pointed out that, after the judgments of this Court in _**TRF Ltd. v. Energo Engineering**_ _**Projects Ltd.**_ [2017 (8) SCC 377] and in _**Tulsi**_ ## _**Developers India Pvt. Ltd. v. Appu Benny Thomas**_ [AR No.105 of 2020], it is not legally competent for the respondent to either arbitrate or to appoint an Arbitrator in a dispute in which they are parties. He, therefore, reiteratingly prayed that this Arbitration Request be allowed as prayed for. 7. I have given the afore rival contentions ## **AR NO. 13 OF 2021** **-6-** of the parties a great amount of thought. There can be no doubt that after **TRF Ltd** . (supra) and **Tulsi Developers India Pvt. Ltd.** (supra), the contentions of the respondent, that they must be allowed to appoint an Arbitrator, cannot hold water because, admittedly, they are party to the disputes. After the declarations in the afore judgments, it is impermissible for the respondent either to arbitrate the disputes or to appoint an Arbitrator; and consequently, therefore, it is certain that this Court is enjoined to appoint a suitable Arbitrator in terms of Section 11 of the Act. 8. Coming to the 2[nd] contention of Sri.S.Krishna Prasad, that the matter ought to have been resolved through mediation before the petitioner could have sought for an arbitration, I am certain that same is irrelevant now, since, as is evident from Ext.P9, it was preferred by the ## **AR NO. 13 OF 2021** **-7-** petitioner as early as on 03.02.2018; but no steps have been taken by the respondent to either refer the disputes to mediation or to appoint an Arbitrator, even though they admit that they were competent to do under Clause 4 of Annexure 2 agreement. 9. This is more so because, as is perspicuous from Annexure 10, the specific stand of the respondent is that mediation is not possible without the intervention of the Secretary and President of Thariyode Grama Panchayat; but I fail to understand how this is possible without the consent of petitioner, since said Authorities are not part of Annexure 2 agreement. 10. I am, therefore, firm in my mind that the contentions in opposition to this Arbitration Request made by the respondent are untenable and that a sole Arbitrator is required to be appointed. ## **AR NO. 13 OF 2021** **-8-** Presumably, being aware of the mind of this Court as afore, Sri.S.Krishna Prasad – learned counsel for the respondent, submitted that his client will also agree to the appointment of an Arbitrator provided all their contentions are left open and the same are directed to be considered and resolved by the said Authority in terms of law. In the afore circumstances, I order this Arbitration Request in the following manner: **==> picture [313 x 12] intentionally omitted <==** M.G.T.Building, Kalpetta North P.O., Wayanad – 673 122, as the sole Arbitrator, to adjudicate and resolve the disputes and differences between the parties to this case arising from and relating to Annexure 2 agreement. **==> picture [313 x 13] intentionally omitted <==** ## **AR NO. 13 OF 2021** **-9-** communicate a copy of this order to the learned Arbitrator within a period of one week 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 and Conciliation Act, 1996. (e) In order to enable the Arbitrator **AR NO. 13 OF 2021** **-10-** to commence the proceedings without delay, I direct the parties to mark appearance before him at 11 A.M. on 13.10.2021. akv **Sd/DEVAN RAMACHANDRAN JUDGE** **-11-** ## **AR NO. 13 OF 2021** ## **APPENDIX OF AR 13/2021** ## **PETITIONER ANNEXURES** |**ANNEXURE**|**P1**|**TRUE COPY OF THE WORK ORDER DATED**| |---|---|---| |||**16.05.2017 ISSUED BY THE RESPONDENT.**| |**ANNEXURE**|**2**|**TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN**| |||**THE RESPONDENT AND THE PETITIONER DATED**| |||**10.08.2017.**| |**ANNEXURE**|**3**|**TRUE COPY OF THE COMMUNICATION ISSUED BY**| |||**THE THARIYODU GRAMA PANCHAYATH DATED**| |||**11.09.2017.**| |**ANNEXURE**|**4**|**TRUE COPY OF THE APPLICATION FILED BY THE**| |||**RESPONDENT BEFORE THE THARIYODU GRAMA**| |||**PANCHAYATH DATED 20.10.2017.**| |**ANNEXURE**|**5**|**TRUE COPY OF THE ORDER DATED 06.11.2017 IN**| |||**WP(C) NO.35379 OF 2017.**| |**ANNEXURE**|**6**|**TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY**| |||**THE SECRETARY, TARIYODU GRAMA PANCHAYATH IN**| |||**WP(C) NO.21409 OF 2019 BEFORE THE HON'BLE**| |||**COURT.**| |**ANNEXURE**|**7**|**TRUE COPY OF THE REPRESENTATION DATED**| |||**12.10.2020 GIVEN BY THE PETITIONER TO THE**| |||**RESPONDENT.**| |**ANNEXURE**|**8**|**TRUE COPY OF THE JUDGMENT DATED 01.12.2020**| |||**IN WP(C) NO.21409 OF 2019 OF THIS HON'BLE**| |||**COURT.**| |**ANNEXURE**|**9**|**TRUE COPY OF THE NOTICE DATED 03.02.2018**| |||**ISSUED THROUGH THE LAWYER OF THE**| |||**PETITIONER.**| |**ANNEXURE**|**10**|**TRUE COPY OF THE REPLY GIVEN BY THE**| |||**RESPONDENT THROUGH THEIR ADVOCATE DATED**| |||**15.02.2018.**|