Karnataka High Court
Mr M P Nrupatunga vs The Executive Engineer on 10 June, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 10TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CIVIL MISCELLANEOUS PETITION NO.393/2022 C/W
CIVIL MISCELLANEOUS PETITION NO.394/2022 C/W
CIVIL MISCELLANEOUS PETITION NO.395/2022
IN CMP NO. 393/2022
BETWEEN :
MR. M. P. NRUPATUNGA
S/O PUTTASWAMY
AGED ABOUT 39 YEARS
R/AT NO.284, 3RD CROSS
BANDIGOWDA LAYOUT
MANDYA - 571 401.
...PETITIONER
(By SRI. NISHANTH A V., ADVOCATE)
AND :
1. THE EXECUTIVE ENGINEER
PUBLIC WORKS,
PORTS AND INLAND
TRANSPORT DEPARTMENT
MYSORE DIVISION
MYSORE -570 010.
2
2. THE PRINCIPAL SECRETARY
PUBLIC WORKS DEPARTMENT
GOVT OF KARNATAKA
VIKAS SOUDHA, BENGALURU - 560 001.
... RESPONDENTS
(BY SRI. D.C. PARAMESHWARAIAH, HCGP)
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SEC.11(5, 6) OF THE ARBITRATION AND
CONCILIATION ACT 1996, PRAYING TO A) APPOINT
HON'BLE SRI. SIDDHALINGESH, RETIRED DISTRICT
JUDGE AS SOLE ARBITRATOR WHOSE NAME HAS
ALREADY BEEN SUGGESTED BY THE PETITIONER IN
THE LEGAL NOTICE DATED 11/01/2022 ANNEXURE-
C IN TERMS OF CLAUSE 24 OF THE AGREEMENT
DATED 10/07/2019 VIDE ANNEXURE-A TO
CONSTITUTE AN ARBITRAL TRIBUNAL TO
ADJUDICATE UPON THE DISPUTES BETWEEN THE
PARTIES; B) ALTERNATIVELY, THIS COURT MAY BE
PLEASED TO APPOINT ANY OTHER PERSON/S AS THE
SOLE ARBITRATOR FOR ADJUDICATION OF THE
DISPUTE BETWEEN THE PARTIES OF THE
AGREEMENT.
IN CMP NO. 394/2022
BETWEEN :
MR. M. P. NRUPATUNGA
S/O PUTTASWAMY
AGED ABOUT 39 YEARS
R/AT NO.284, 3RD CROSS
BANDIGOWDA LAYOUT
MANDYA - 571 401.
...PETITIONER
(By SRI. NISHANTH A V., ADVOCATE)
3
AND :
1. THE EXECUTIVE ENGINEER
PUBLIC WORKS,
PORTS AND INLAND
TRANSPORT DEPARTMENT
DIVISION, MANDYA VIDYA NAGAR
MANDYA, SH-17
MANDYA - 571 401.
2. THE PRINCIPAL SECRETARY
PUBLIC WORKS DEPARTMENT
GOVT OF KARNATAKA
VIKAS SOUDHA, BENGALURU - 560 001.
... RESPONDENTS
(BY SRI. D.C. PARAMESHWARAIAH, HCGP)
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SEC.11(5, 6) OF THE ARBITRATION AND
CONCILIATION ACT 1996, PRAYING TO A) APPOINT
HON'BLE SRI. SIDDHALINGESH, RETIRED DISTRICT
JUDGE AS SOLE ARBITRATOR WHOSE NAME HAS
ALREADY BEEN SUGGESTED BY THE PETITIONER IN
THE LEGAL NOTICE DATED 11/01/2022 ANNEXURE-
C IN TERMS OF CLAUSE 24 OF THE AGREEMENT
DATED 22/11/2016 VIDE ANNEXURE-A TO
CONSTITUTE AN ARBITRAL TRIBUNAL TO
ADJUDICATE UPON THE DISPUTES BETWEEN THE
PARTIES; B) ALTERNATIVELY, THIS COURT MAY BE
PLEASED TO APPOINT ANY OTHER PERSON/S AS THE
SOLE ARBITRATOR FOR ADJUDICATION OF THE
DISPUTE BETWEEN THE PARTIES OF THE
AGREEMENT.
4
IN CMP NO. 395/2022
BETWEEN :
MR. M. P. NRUPATUNGA
S/O PUTTASWAMY
AGED ABOUT 39 YEARS
R/AT NO.284, 3RD CROSS
BANDIGOWDA LAYOUT
MANDYA - 571 401.
...PETITIONER
(By SRI. NISHANTH A V., ADVOCATE)
AND :
1. THE EXECUTIVE ENGINEER
PUBLIC WORKS,
PORTS AND INLAND
TRANSPORT DEPARTMENT
SPECIAL DIVISION
HUNASUR - 571 105.
2. THE PRINCIPAL SECRETARY
PUBLIC WORKS DEPARTMENT
GOVT OF KARNATAKA
VIKAS SOUDHA, BENGALURU - 560 001.
... RESPONDENTS
(BY SRI. D.C. PARAMESHWARAIAH, HCGP)
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SEC.11(5, 6) OF THE ARBITRATION AND
CONCILIATION ACT 1996, PRAYING TO A) APPOINT
HON'BLE SRI. SIDDHALINGESH, RETIRED DISTRICT
JUDGE AS SOLE ARBITRATOR WHOSE NAME HAS
ALREADY BEEN SUGGESTED BY THE PETITIONER IN
THE LEGAL NOTICE DATED 11/01/2022
5
ANNEXURE-C IN TERMS OF CLAUSE 24 OF THE
AGREEMENT DATED 14/09/2017 VIDE ANNEXURE-A
TO CONSTITUTE AN ARBITRAL TRIBUNAL TO
ADJUDICATE UPON THE DISPUTES BETWEEN THE
PARTIES; B) ALTERNATIVELY, THIS COURT MAY BE
PLEASED TO APPOINT ANY OTHER PERSON/S AS THE
SOLE ARBITRATOR FOR ADJUDICATION OF THE
DISPUTE BETWEEN THE PARTIES OF THE
AGREEMENT.
THESE PETITIONS COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner - a contractor, who is issued with the different Work Orders for execution of the civil work for certain roads in the districts of Mysore, Mandya and Hassan and who has the benefit of the corresponding agreements in this regard- has filed this petition for appointment of a sole arbitrator. The different officers of the Public Works Port and Inland Water Transport Department, Government of Karnataka have issued the subject Work Orders. In terms of the corresponding Work Orders, the disputes are agreed to be resolved by 6 arbitration according to the agreed procedure for arbitration.
2. The petitioner's case is that he is given copies of some of the agreements with the corresponding terms and conditions and in some case, he is given only copies of the agreements without the terms and conditions. Therefore, the petitioner has produced both the terms and conditions furnished to him and the terms and conditions published on the website as part of prescribed Pro-forma for KPWD contracts. Sri. A V Nishanth, who appears for the petitioner, points out the arbitration clauses in these two documents. This clause in the respective documents reads as under:
• The relevant clause as per the copies available with the petitioner:
"4.1 The procedure for arbitration shall be as follows:
(a) In case of dispute or difference arising between the Employer and the Contractor 7 relating to any matter arising out of or connected with this agreement:
Any dispute or difference or claim arising out of, or in connection with, or relating to the present contract or the breach, termination or invalidity thereof, shall be referred and settled under the Arbitration Centre- Karnataka (Domestic & international) Rules 2012, by one or more arbitrators appointed in accordance with its rules"
(b) Arbitration proceedings shall be held at...............Karnataka, India
(c) The cost and expenses of arbitration proceedings will be paid as determined by the Arbitrator. However, the expenses incurred by each party in connection with preparation, presentation, etc, shall be borne by each party itself.
(d) Performance under the contract shall continue during the arbitration proceedings and payments due the Contractor by the Employer shall not be withheld, unless they are the subject matter of the arbitration proceedings, For clause 3.2(b) & 3.5 of ITT: updated to the FY in which the tenders are invited.
The value of the completed works shall be given a weight of 10% per year to bring them to the price lever of the FY in which tenders are invited, For clause 3.2(a) of ITT : updated to the FY in which the tenders are invited financial turnover of previous years shall be given 8 a weight of 10% per year to bring them to the price level of the FY in which the tenders are invited."
• The clauses in the published Pro-forma:
"24 Procedure for resolution of disputes:
24.1 If the Contractor is not satisfied with the decision taken by the Employer, the dispute shall be referred by either party to Arbitration within 30 days of the notification of the Employer's decision.
24.2 If neither party refers the dispute to Arbitration within the above 30 days, the Employer's decision will be final and binding.
24.3 The Arbitration shall be conducted in accordance with the arbitration procedure stated in the Special Conditions of Contract."
xxx 4 Arbitration (Clause 24) 4.1 The procedure for arbitration shall be as follows:
(a) In case of dispute or difference arising between the Employer and the Contractor relating to any matter arising out of or connected with this agreement it shall be settled in accordance with the Arbitration and Conciliation Act 1996. The disputes or differences shall be referred to a Sole 9 Arbitrator. The Sole Arbitrator shall be appointed by agreement between the parties: failing such agreement, by the Appointing Authority (any one of Organizations as per list enclosed in Annexure)
(b) Arbitration proceedings shall be held at...............Karnataka, India
(c) The cost and expenses of arbitration proceedings will be paid as determined by the Arbitrator. However the expenses incurred by each party in connection with preparation, presentation, etc, shall be borne by each party itself.
(d) Performance under the contract shall continue during the arbitration proceedings and payments due the Contractor by the Employer shall not be withheld, unless they are the subject matter of the arbitration proceedings."
(The underlining is by this Court)
3. Sri. A.V. Nishanth submits that in the peculiar circumstances of the case, the petitioner, whose claims are not settled and who does not have the copies of all the respective terms, has issued notices to the respondents as also to the organizations referred to in the Pro-forma for commencement of the arbitral 10 proceedings. But neither have responded to these notices. The petitioner has initially suggested a retired District Judge as the sole arbitrator, however with both the respondents and the organizations remaining unresponsive, the petitioner has also called upon the respondents to agree upon the petitioner's nominee as the sole arbitrator.
4. Sri. A V Nishanth lastly submits that this Court must appoint a former Judge of this Court as the sole arbitrator to enter reference of the dispute and conduct arbitral proceedings in the Arbitration and Conciliation Centre (Domestic and International), Bengaluru. The learned HCGP, who appears for the respondents, is unable to controvert that in one of the agreements the parties have agreed for arbitration by a sole arbitrator or a panel of arbitrators to be constituted with the consent of the parties for arbitration at the Bangalore Arbitration and Conciliation Centre (Domestic 11 and International), and the terms and conditions insofar as the other two agreements are not available.
5. Given the similarities in the circumstances leading to the dispute by the petitioner under the different Work Orders/ Agreements and the fact that the parties have agreed for arbitration by a sole arbitrator at the Bangalore Arbitration and Conciliation Centre (Domestic and International) admittedly insofar as certain Work Orders, this Court is of the considered view that a former Judge must be appointed as the sole arbitrator. When this is put to the learned counsels for the parties, both agree that Justice Chandrashekaraiah, a Former Judge of this High Court, could be appointed as the sole arbitrator to enter reference of the dispute between the parties and conduct arbitral proceedings at Arbitration and Conciliation Centre (Domestic and International), Bangalore subject to the Rules framed therefor. Hence, the following 12 ORDER [1] The petitions are allowed appointing Sri Justice Chandrashekaraiah, a former Judge of this High Court, No.2737, 7th 'A' Main Road, Banashankari, II Stage, Bengaluru - 560 070. Cell: 9448052800, Ph:
26765633, to enter reference of the dispute between the parties and to conduct arbitral proceedings before the Arbitration and Conciliation Centre (Domestic and International), Bangalore subject to the Rules framed therefor.
[2] The Office is directed to communicate this order to the Arbitration and Conciliation Centre (Domestic and International), Bangalore and Sri Justice Chandrashekaraiah, retired Judge, as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.
Sd/-
JUDGE nv