Kerala High Court
Sun Paul Properties Pvt Ltd vs Mr. Sinik K Thomas on 12 September, 2025
2025:KER:67941
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 12TH DAY OF SEPTEMBER 2025 / 21ST BHADRA, 1947
AR NO. 75 OF 2025
PETITIONER
SUN PAUL PROPERTIES PVT LTD,
REPRESENTED BY IT'S MANAGING DIRECTOR,
MR. SUNNY PAUL, SUNPAUL GIFTY, CHOTTANIKKARA
MULANTHURUTHY RD, PALLITHAZHAM, MULANTHURUTHY,
KERALA ., PIN - 682314
BY ADVS.
SHRI.BHARATH MURALI
SHRI.MANU NAIR G.
SHRI.AJAY SANKAR
SHRI.SIDHARTH MURALI
RESPONDENT
MR. SINIK K THOMAS,
S/O. LATE PUNNEN THOMAS, RESIDING AT MUTTATHU
HOUSE, TRIPUNITHURA P.O, ERNAKULAM,,
PIN - 682301
BY ADVS.
SHRI.K.N.SREEKUMARAN
SRI.P.J.ANILKUMAR (A-1768)
SHRI.LIJO VARGHESE
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON
12.09.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:67941
AR No.75 of 2025
2
ORDER
Dated this the 12th day of September 2025
1. This is an application for the appointment of an Arbitrator filed under Section 11(6) of the Arbitration and Conciliation Act, 1996. The arbitration request is opposed by the respondent by filing a counter affidavit. On going through clause 15 of Annexure I, which contains the arbitration clause, it is seen that at the first instance, the parties have to attempt an amicable settlement of the issue within 30 days, and in case of failure, the dispute shall be referred for arbitration and hence, without an attempt from the side of the petitioner for amicable settlement, the petitioner cannot seek appointment of arbitrator. There is no averment or document to the effect that the petitioner has attempted an amicable settlement before issuing the notice for the Arbitration.
2. Hence, this Arbitration request is dismissed, reserving 2025:KER:67941 AR No.75 of 2025 3 the right of the petitioner to approach again in accordance with law.
15.09.2025:
SPOKE
1. This Arbitration Request was dismissed by this Court on 12.09.2025 by pronouncing Judgment in open court on the ground that the petitioner did not attempt for amicable settlement of the dispute within 30 days, which is a condition precedent for invoking the arbitration clause in the Annexure I Agreement. Before signing the judgment, the learned Counsel for the petitioner mentioned that he needed to cite certain decisions on the point and hence the Arbitration Request was posted today as 'To be spoken to'.
2. Both Counsel were heard further.
3. The learned counsel for the petitioner cited the decision of the Delhi High Court in Ravindra Kumar Verma vs. M/s. BPTP Ltd. and Another [2014 SCC OnLine Del 6602] which is followed by the subsequent decision of 2025:KER:67941 AR No.75 of 2025 4 the same High Court in Sarvesh Security Services Pvt. Ltd. v. Managing Director, DSIIDC [Dated
16.03.2018 in Arb.P. 181/214] in which it is held that clause mandating to attempt for settlement before invoking the arbitration clause is only directory, and that once there is no provision to exclude the period spent in conciliation proceedings, it is possible that if conciliation proceedings continue when the limitation period expires, the same will result in nullifying the arbitration clause. The learned counsel for the petitioner pointed out that two of the claims out of the total amount of Rs.83,56,990/- relate to Kerala Water Authority charges amounting to Rs.3,08,000/- and KSEB charges of Rs.13,58,000/-. They were expended before obtaining the Completion Certificate on 19.01.2021. In view of the decision of the Hon'ble Supreme Court with respect to the exclusion of the COVID period, the limitation is to be calculated from 28.02.2022. The petitioner has filed this Arbitration Request after issuing Annexure 2 Notice 2025:KER:67941 AR No.75 of 2025 5 dated 19.02.2025 proposing to invoke the arbitration clause, which is within three years from 28.02.2022. If the petitioner is directed to attempt an amicable settlement, the petitioner will not be in a position to issue a fresh Notice within the limitation period calculated from 28.02.2022.
4. The learned Counsel for the respondent contended that they are ready for settling the issue with the petitioner. Since the petitioner did not attempt an amicable settlement, the opportunity for settlement is lost, and the respondent would be much prejudiced since the respondent will be unnecessarily dragged to the arbitration proceedings.
5. In view of the aforesaid decisions of the Delhi High Court, I find force in the submission of the learned counsel for the petitioner that if the petitioner is directed to attempt an amicable settlement, the petitioner will be prejudiced, as the petitioner will not be in a position to issue a fresh Notice within the limitation period 2025:KER:67941 AR No.75 of 2025 6 calculated from 28.02.2022. Accordingly, the judgment pronounced on 12.09.2025 in this Arbitration Request is recalled, and the Arbitration Request is posted on 16.09.2025 for further consideration.
Sd/-
M.A.ABDUL HAKHIM JUDGE Cak 2025:KER:67941 AR No.75 of 2025 7 APPENDIX OF AR 75/2025 PETITIONER ANNEXURES ANNEXURE I A TRUE COPY OF THE JOINT DEVELOPMENT AGREEMENT DATED 15.10.2019 ENTERED BETWEEN THE PETITIONER AND RESPONDENT ANNEXURE II THE TRUE COPY OF THE NOTICE DATED 19.02.2025 ISSUED BY THE PETITIONER UNDER SECTION 21 OF THE ARBITRATION AND CONCILIATION ACT, 1996 ANNEXURE III A TRUE COPY OF THE REPLY OF THE RESPONDENT DATED 21.02.2025