Karnataka High Court
M/S Bhoruka Power Corporation Limited vs Karnataka Power Transmission on 11 January, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
C.M.P. NO.141/2011
Between:
M/s. Bhoruka Power Corporation Limited
A company incorporated under the
Provisions of the Companies Act, 1956
and having its registered office at
No.48, Lavelle Road
Bangalore - 560 001
(Rep. by its Company Secretary and
Vice President-Finance) ...Petitioner
(By Sri Shridhar Prabhu, Adv. for
M/s. Shridhar Prabhu Associates)
And :
Karnataka Power Transmission
Corporation Limited
A Company incorporated under the
provisions of the Companies Act, 1956
and having its registered office at
Kaveri Bhavan, Bangalore-560 001
Rep. by its Managing Director ... Respondent
(By Sri S Sriranga, Adv.)
This Civil Miscellaneous Petition is filed under Section
11 (5) of Arbitration and Conciliation Act, 1996, with a
prayer to appoint a fresh arbitrator as per detailed work
order bearing No.KPTCL/TZH/TRL-2/2006-07/DWA-65
dated 09/08/2006 produced at Annexure A to adjudicate the
claims and dispute of the petitioner against the respondent.
2
This Civil Miscellaneous Petition coming on for
admission, this day, the Court made the following :
ORDER
The petitioner is before this Court praying that an arbitrator be appointed to consider the claim of the petitioner and adjudicate upon the dispute between the parties.
2. The petitioner has referred to the work order dated 09.08.2006 as at Annexure-A which includes all aspects of the matter including the agreement entered into between the parties whereunder the provision has been made for resolution of the dispute. In that context, with reference to clause-49, learned counsel for the petitioner contends that in the event of there being any dispute, the matter is to be resolved by an arbitral Tribunal. In that context, the respondents have failed to accede to the request of the petitioner for arbitration. The petitioner is therefore before this Court seeking appointment of arbitrator.
3. Learned counsel for the respondents though does not dispute the transactions with the petitioner, 3 but would however contend that the agreement as at clause 48 provides for settlement of disputes and only if there is failure in the internal mechanism to arrive at a settlement, the right to seek for appointment of arbitrator would arise. According to the learned counsel, it has been held by the Hon'ble Supreme Court that if the said procedure is not complete, the petitioner cannot seek for appointment of an arbitrator. Hence it is contended that the petitioner would have to first make his claim as provided under clause 48(2) before the Engineer and only on failure to settle, the question of appointment of arbitrator would arise.
4. In the light of the same, it is further pointed out by the learned counsel for the petitioner that the petitioner in fact got issued a notice dated 06.08.2011 as at Annexure-B to the Chief Engineer who is to be considered as the authority as provided under clause 48(2) of the Contract. Despite the petitioner having put forth his claim before the Engineer, instead of considering the same for resolving the dispute, the respondents got issued reply notice which in itself 4 would indicate that the claim as put forth by the petitioner has not been accepted. Therefore, cause has arisen for the petitioner to invoke clause-49 and seek appointment of the arbitrator.
5. I am of the opinion that the contention put forth on behalf of the petitioner is to be accepted and the matter now requires to be referred to arbitration. This is for the reason that there is compliance of the first part contained in clause-48. Though clause-49 provides for appointment of three arbitrators, both the learned counsel agree that it could be referred to an appropriate sole arbitrator. In that regard, learned counsel for the petitioner would suggest the name of Justice Sri M.P.Chinnappa, retired Judge of this Court to act as the sole arbitrator. Learned counsel for the respondent would not object to the said proposal. Hence, Justice Sri M.P.Chinnappa is appointed as the sold arbitrator to enter upon reference and resolve the dispute between the parties. All terms relating to the arbitration shall be settled by the learned arbitrator on appearance of the parties. The petitioner shall now file 5 his claim before the learned arbitrator who shall enter upon reference and issue notice to the parties and proceed with the matter in accordance with law.
Disposed of in the above terms.
Sd/-
JUDGE akc/bms