Kerala High Court
Unknown vs By Adv. Sri.Rajiv Abraham George
Author: P.B. Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938
AR.No. 18 of 2016
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APPLICANT:
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NOEL VILLAS AND APARTMENTS,
5TH FLOOR, NOEL HOUSE, CIVIL LANES RAOD,
THRIKKAKARA P.O., KAKKNAD,COCHIN-682 021,
REPRESENTED BY ITS MANAGING PARTNER JOHN THOMAS.
BY ADV. SRI.RAJIV ABRAHAM GEORGE
RESPONDENT(S):
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1. BHARAT SANCHAR NIGAM LTD,
CTO BUILDING, KARAKKATT ROAD, KOCHI-682 016,
REPRESENTED BY THE PRINCIPAL GENERAL MANAGER
TELECOME, ERNAKULAM .
2. THE CONTROLLER OF COMMUNICATIONS ACCOUNTS (ADMN.)
OFFICE OF THE CONTROLLER OF COMMUNICATIONS ACCOUNTS,
KERALA, DEPARTMENT OF TELECOMMUNICATIONS, 5TH FLOOR,
DOOR SANCHAR BHAWAN, PMG JUNCTION, TRIVANDRUM-695 033.
3. SHAJI P.S,
CHIEF ACCOUNTS OFFICER (ESTT),
OFFICE OF THE PRINCIPAL GENERAL MANAGER, TELECOME,
BHARAT SANCHAR NIGAM LTD, CTO BUILDING,
KARAKKATT ROAD, KOCHI-682 016.
R1 TO R2 BY ADVS. SRI.P.J.PHILIP,SC
SRI.P.K.RAMKUMAR, CGC
SRI.MATHEWS K.PHILIP,SC,
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD
ON 4-01-2017, THE COURT ON 18-01-2017 PASSED THE FOLLOWING:
K.V.
AR 18 OF 2016:
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APPENDIX
PETITIONERS ANNEXURES:
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A1: OP OF ORGINAL PETITION NO 67 OF 2015 FILED BEFORE THE DISTRICT
COURT,ERNAKULAM.
A2: COPY OF WRIT PETITION ) NO 10670 OF 2015-G FILED BEFORE THE
HIGH COURT OF KERALA.
A3: COPY OF COUNTER AFFIDAVIT DATED3.6.2015 FILED BY 1ST RESPONDENT
IN WRIT PETITION(c) NO 10670 OF 2015-G.
A4: COPY OF JUDGMENT DATED 22.6.2015 IN WRIT PETITION(c) NO 10670
OF 2015-G.
A5: COPY OF ORDER DATED 15.1.2016 FROM THE 2ND RESPONDENT TO THE
APPLICANT.
A6: COPY OF PROCEEDINGS DATED 10.2.2016 FROM THE 3RD RESPONDENT TO
THE APPLICANT AND THE 1ST RESPONDENT.
A7: COPY OF LETTER DATED 15.2.2016 FROM THE APPLICANT TO THE 3RD
RESPONDENT WITH COPY TO THE 1ST RESPONDENT.
A8: COPY OF SECTION 7B OF THE INDIAN TELEGRAPH ACT, 1885.
RESPONDENTS ANNEXURES: NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
P.B. SURESH KUMAR, J.
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Arbitration Request No.18 of 2016
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Dated this the 18th day of January, 2017
O R D E R
This is an arbitration request preferred under sub- sections (6) and (8) of Section 11 of the Arbitration and Conciliation Act, 1996 ('the Act' for short). The applicant is a partnership firm. They have applied for and obtained a Primary Rate Interface Telephone Line (the PRI Line) from the first respondent (the BSNL) for their office use. The said facility was being used by the applicant from July 2014. It is stated in the arbitration request that the bills in respect of the PRI Line have been between Rs.15,000/- to Rs.20,000/- all along. It is stated that while so, the applicant received a bill for a sum of Rs.11,95,639.45 for the PRI Line for the period from 01.11.2014 to A.R. No.18 of 2016 -2- 30.11.2014. According to the applicant, they have not used the PRI Line during the said period warranting such a huge bill and therefore, the same can only be on account of a mistake or unauthorised use of the facility. The applicant, therefore, preferred objections to the said bill. While so, they were issued yet another bill for the PRI Line for Rs.20,05,382.12 for the period from 01.12.2014 to 31.12.2014. The applicant raised objections against the said bill also. It is seen that though the applicant has been granted the facility of remitting a portion of the disputed bills pending investigation into the complaints lodged by them, later, the BSNL took the view that the applicant is liable to pay the disputed bills and initiated proceedings for realisation of the disputed amounts. The applicant then approached this Court by filing W.P.(C) No.10670/2015 and the said writ petition was allowed directing the BSNL to initiate steps for appointment of an Arbitrator to resolve A.R. No.18 of 2016 -3- the disputes as provided for under Section 7B of the Indian Telegraph Act. Annexure-4 is the judgment rendered by this Court in the said writ petition. As per Annexure-4 judgment, this Court also directed that no demand shall be raised against the petitioner before the dispute is adjudicated through the arbitration process. Pursuant to Annexure-4 judgment, the Central Government appointed an officer of the BSNL as an Arbitrator for determination of the disputes. Annexure-5 is the communication issued to the applicant in this connection. According to the applicant, an officer of the BSNL cannot be appointed as an Arbitrator and hence this arbitration request for appointment of an independent or an impartial person, preferably a retired Judge of this Court, to act as sole arbitrator to adjudicate upon the disputes.
2. A statement has been filed on behalf of the Central Government, contending that appointment of a A.R. No.18 of 2016 -4- retired Judge of this Court as an Arbitrator will only make the issue at hand more complex. According to the Central Government, an Arbitrator with technical know-how is absolutely necessary in a dispute of this nature.
3. A statement has been filed on behalf of the BSNL contending that in the light of the decision of this Court in Francis Mukkanical v. General Manager, BSNL [2012(3) KLT 885], the arbitration request is not maintainable, for, the provisions contained in the Act do not apply to arbitrations provided for under Section 7B of the Indian Telegraph Act.
4. Heard the learned counsel for the applicant, the learned counsel for the BSNL as also the learned counsel for the Central Government.
5. Section 12 of the Act, to the extent it is relevant in the context of the present case, reads thus:
12. Grounds for challenge.-(1) When a person is approached in connection with his possible appointment as A.R. No.18 of 2016 -5- an arbitrator, he shall disclose in writing any circumstances,-
(a) Such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and
(b) Which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months.
Explanation 1. - The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator.
Explanation 2.- The disclosure shall be made by such person in the form specified in the Sixth Schedule.
x x x x x x x x x x x x (5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the the subject matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator:
Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing. A.R. No.18 of 2016 -6- The 5th Schedule to the Act, to the extent relevant in the context of the present case, reads thus:
"The following grounds give rise to justifiable doubts as to the independence or impartiality of arbitrators: Arbitrator's relationship with the parties or counsel (1) The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.
x x x x x x x x x x x x x x x x The 7th Schedule to the Act, to the extent relevant in the context of the present case, reads thus:
"(1). The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party."
x x x x x x x x x x x x x x x x In the light of the aforesaid provisions, there cannot be any dispute to the fact that an officer of the BSNL cannot be appointed as an arbitrator in a dispute in which the BSNL is a party.
A.R. No.18 of 2016 -7-
6. The learned counsel for the Central Government could not substantiate as to how the appointment of a retired judge of this Court as arbitrator in a matter like this will make the issue at hand more complex. There is absolutely no bonafides in the contention of the Central Government that technical know- how is necessary in a dispute of this nature, for, the person appointed by the Central Government as arbitrator in this matter is not a person having technical knowledge. As evident from Annexure-5 order, the person appointed by the Central Government as arbitrator in this matter is only an Accounts Officer of the BSNL. The contention that an adjudication which an Accounts Officer of the BSNL is able to do, cannot be done by a former Judge of this Court, cannot be accepted.
7. The remaining issue is as to whether the provisions in the Act would apply for the arbitration A.R. No.18 of 2016 -8- provided for under Section 7B of the Indian Telegraph Act. The question arose in Francis Mukkanical v. General Manager, BSNL (supra) was whether an application under Section 34 of the Act is maintainable against an award passed under Section 7B of the Indian Telegraph Act. Having regard to the provisions contained in Section 7B of the Indian Telegraph Act, this Court took the view that proceedings cannot be initiated under Section 34 of the Act in respect of an award passed under Section 7B of the Indian Telegraph Act. That does not mean that an application cannot be filed under Section 11 of the Act for appointment of an arbitrator for the statutory arbitration provided for under Section 7B of the Indian Telegraph Act. According to me, the provisions of the Act in so far as the same are consistent with the provisions of the Indian Telegraph Act would apply to the arbitration under Section 7B of the Indian Telegraph Act also.
A.R. No.18 of 2016 -9-
In the result, the arbitration request is allowed, Justice T.V. Ramakrishnan (retired) is appointed as the arbitrator in this matter to adjudicate upon the disputes and differences between the parties in accordance with Section 7B of the Indian Telegraph Act. The Arbitrator shall commence the proceedings with notice to the parties.
Sd/-
P.B. SURESH KUMAR JUDGE bpr