St. Mary's Enterprises Ltd v Simplex Infrastructure Ltd and others

# **`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. 106 OF 2021 ``` ## **`APPLICANT:`** ``` ST. MARY’S ENTERPRISES LTD, 16/255A, AMBALAMUGAL, ERNAKULAM DISTRICT, REPRESENTED BY ITS PROPRIETOR SRI.BINOY M.P., S/O.PAULOSE, AGED 44 YEARS, MOONUPADICKAL HOUSE, KUMARAPURAM P.O., EAST MORAKKALA, ERNAKULAM DISTRICT - 6873 565. ``` ``` BY ADVS. PAUL K.VARGHESE A.A.GEETHA ``` ## **`OPPOSITE PARTIES:`** - `1 SIMPLEX INFRASTRUCTURE LTD, BPCL, MSBP & PDBP SITE KOCHIN REFINERY PROJECT, AMBALAMUGAL, ERNAKULAM - 682 302.` ``` 2THE MANAGING DIRECTOR/CHIEF EXECUTIVE OFFICER SIMPLEX INFRASTRUCTURE LTD., BPCL, MSBP & PDPP SITE, KOCHIN REFINERY PROJECT, AMBALAMUGAL, ERNAKULAM - 682 302. ``` ``` 3SIMPLEX INFRASTRUCTURE LTD., NEW NO.48 (OLD NO.21) THASA MAJOR ROAD,EGMORE,CHENNAI - 600 008 REPRESENTED BY ITS MANAGING DIRECTOR. ``` - `4 SIMPLEX HOUSE 27 SHAKESPEARESARANI CALCUTTA - 700 017 REPRESENTED BY ITS MANAGING DIRECTOR.` ``` 5BADAL CHANDRAPAL, (AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER) PROJECT MANAGER, SIMPLEX INFRASTRUCTURE LTD., NEW NO.48 (OLD NO.21), THASA MAJOR ROAD, EGMORE, CHENNAI - 600 008. ``` ``` 6JOY ANTONY, (AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER), SENIOR MANAGER ACCOUNTS, SIMPLEX INFRASTRUCTURE LTD., NEW NO.48 (OLD NO.21), THASA MAJOR ROAD,EGMORE, CHENNAI - 600 008. ``` AR 106/21 2 ## **`GARNISHEE`** `:` ``` 1THE CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR, BPCL, MSBP & PDBP SITE, COCHIN REFINERY, AMBALAMUGAL, ERNAKULAM 682 302 2THE EXECUTIVE DIRECTOR PROJECT, BPCL, MSBP & PDBP SITE, COCHIN REFINERY PROJECT, AMBALAMUGAL, ERNAKULAM 682 302 ``` ``` THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` AR 106/21 3 ## **`O R D E R`** The applicant, which is stated to be a Partnership Firm, says that they had entered into Annexure I Work Order with the first opposite party – which is a Company incorporated under the provisions of the Companies Act, 1956 - and that though they had completed their obligations under it satisfactorily, disputes arose between them, singularly because the opposite party did not abide by their commitment to pay the amounts under the said Work Order. 2. The applicants say that, they, therefore, preferred Annexure II notice to the 1st opposite party, seeking that either their claim be honoured or the disputes be referred to a sole Arbitrator since, going by Clause 8 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 Arbitration. They, however, concede that, as per the Arbitration AR 106/21 4 Clause, the Arbitrator is to be appointed by the Managing Director of the 1st 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 file show that even though notices were issued to the opposite parties, they have been returned with the endorsement ‘left’ and that 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 Companies. A memo has been filed by the applicants saying that AR 106/21 5 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 Annexure I, which is the Work Orders between the parties and it is indubitable from Clause 8 thereof 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 II request has been disregarded by the respondents, I am of the view that this Court is enjoined to allow this Arbitration Request. 6. That said, however, since the Work Order has been entered into by the applicants only with the first opposite party, it is not necessary that the second opposite party be involved. In the afore circumstances, I allow this Arbitration Request in the following manner: AR 106/21 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 Work Order. (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. AR 106/21 7 (e) 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 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/- ``` ``` DEVAN RAMACHANDRAN JUDGE ``` ``` RR ``` AR 106/21 8 ## **`APPENDIX OF AR 106/2021`** ``` PETITIONER ANNEXURES Annexure IA TRUE COPY OF THE WORK ORDER ISSUED TO THE APPLICANTS DATED 9/12/2017. Annexure IIA TRUE COPY OF THE ARBITRATION REQUEST MADE BY THE APPLICANT DATED 17/11/2021. ```