Kerala High Court
Kurian And Varghese vs The Engineer- In-Chief on 7 November, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934
AR.No. 33 of 2012 ()
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PETITIONER/APPLICANT:
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KURIAN AND VARGHESE
ENGINEERS ANDF CONTRACTORS THACHAMPURATH
MULANTHURUTHY-682314 ERNAKULAM DISTRICT.
BY ADVS.SRI.MEIJO KURIAN PUVATHINGAL
SMT.PREMY MEIJO
RESPONDENT(S):
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1. THE ENGINEER- IN-CHIEF
ENGINEER-IN-CHIEF'S BRANCH, CONTRACT MANAGEMENT-E 8
ARMY HEAD QUARTERS, KASHMIR HOUSE, DHQ P.O.
NEW DELHI-110 011
2. THE CHIEF ENGINEER, (N.W.)
NAVAL WORKS-M.E.S. KATARIBAUGH, NAVAL BASE POST
COCHIN-682 004.
R1,R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON
07-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
tss
AR.33/2012
APPENDIX
PETITIONER'S ANNEXURES
A1:- COPY OF THE ARBITRATION CALUSE NO.70 AS PROVIDED IN THE GENERAL
CONIDTIONS OF CONTRACT OF THE MES (I.A.F.W 2249) FORMING PART OF THE
CONTRACT AGREEMENT
2:- COPY OF THE NOTIE ISSUED DTD. 3.10.2011 TO THE ENGINEER -IN-CHIEF OF MES,
ARMY HEAD QUARTERS, NEW DELHI, ALONG WITH THE TERMS OF REFERENCE
REQUESTING FOR THE APPOINTMENT OF A SOLE ARBITRATOR. DTD. 9.12.2011.
RESPONDENT'S ANNEXURES
NIL
//TRUE COPY//
P.A. TO JUDGE
tss
ANTONY DOMINIC, J.
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Arbitration Request No.33 OF 2012
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Dated this the 7th day of November, 2012
O R D E R
Petitioner was awarded contract for certain civil works and according to them, the works were completed on 14/8/2007. It is stated that though final bill was submitted immediately thereafter, payments were made after a lapse of more than three years. On such payment, they noticed that an amount of `5,43,592/- was recovered towards the labour welfare cess at 1% of the contract value. This was objected, but however, amount was not paid. As the contract contained a provision for arbitration, Annexure A2 notice was issued demanding the appointment of an Arbitrator. 1st respondent did not even respond to the notice. In such circumstances, this application has been filed under Section 11(6) of the Arbitration and Conciliation Act seeking an order for the appointment of an Arbitrator.
2. Counter affidavit has been filed on behalf of respondents 1 and 2. While the award of contract, recovery effected and existence of arbitration clause are admitted, respondents would contend that by Annexure R1(d), the applicant AR No.33/12 :2 : has given a non due certificate and therefore they cannot raise any claim thereafter. However, the fact that a no due certificate has been issued by itself will not deprive the applicant of his right to raise disputes for arbitration. According to them, no due certificate was issued under coercion and duress.
3. The non due certificate cannot deprive the petitioner his remedies in all circumstances. In any case, the question whether on account of the no due certificate issued, the claim raised by the applicant is unsustainable or not is also a matter which is to be decided by the Arbitrator appreciating the evidence that is to be tendered by the parties concerned. This aspect has been considered by the Apex Court in M/s. Ambica Construction v. Union of India (2006(13) SCC 475).
4. Evidently there is a dispute in existence between the parties and the agreement between them provides for arbitration. Demand has been made for the appointment of an Arbitrator, which has not been conceded. Circumstances therefore indicate the failure of agreed procedure of arbitration entitling the applicant for an order under Section 11(6) of the Act. AR No.33/12 :3 :
Therefore, I appoint Sri.K.Ramachandran, Retired District Judge, Govind, Neduveli Lane, Valanjambalam, Kochi-16 to arbitrate the dispute between the applicant and the respondents.
ANTONY DOMINIC, JUDGE Rp