Kerala High Court
Alex P.Cyriac vs Hindustan News Print Ltd on 11 September, 2013
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2013/20TH BHADRA, 1935
AR.No. 53 of 2010
-------------------------
PETITIONER:
-------------------
ALEX P.CYRIAC, PROPRIETOR,
PERUMALIL GRANITE CONSTRUCTIONS,
ARUNNOOTTIMANGALAM P.O,
KOTTAYAM DISTRICT.
BY SRI.K.GOPALAKRISHNA KURUP,SENIOR ADVOCATE,
ADVS. SRI. S. MANU,
SMT. K. DEEPA.
RESPONDENTS:
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1. HINDUSTAN NEWS PRINT LTD.,
MAVELLOOR, KOTTAYAM.
2. ENGINEERING PROJECT (INDIA) LTD.,
3-D.E.C.CHAMBERS, 92, G.M.CHETTY ROAD,
T.NAGAR, CHENNAI-600 017.
3. B.B.I.P.C INFRASTRUCTURE (INDIA) PVT. LTD.,
"BHEEMANENIS", NO.19, 5TH CROSS SWIMMING POOL EXTN.,
MALLASWARAM, BANGALORE-560 003,
C.B.ROYAL, 2ND FLOOR, NO.2/2,
DR.RAJKUMAR ROAD, RAJAJI NAGAR, 3RD BLOCK,
BANGALORE-560 010.
R1 BY ADVS. SRI.E.K.MADHAVAN,
SRI.V.KRISHNA MENON,
SMT.P.VIJAYAMMA,
SMT.UMA GOPINATH,
SRI.PRINSUN PHILIP,
SRI.U.K.DEVIDAS,
SRI.PILLAI JAYAPRAKASH RAVEENDRAN,
R2 BY ADV. SRI.ALIAS M.CHERIAN,
R3 BY ADV. SRI.JOY THATTIL ITTOOP.
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION
ON 11-09-2013, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Prv.
A.R. NO.53/2010:
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE-I: COPY OF THE AGREEMENT DTD. 14/02/2008.
ANNEXURE-II: COPY OF THE WORK ORDER DTD. 12/02/2008.
ANNEXURE-III: COPY OF THE LETTER DTD. 30/04/2010 SENT BY THE
PETITIONER TO THE R.2.
ANNEXURE-IV: COPY OF THE LETTER DTD. 01/06/2010 SENT TO THE R.3.
ANNEXURE-V: COPY OF THE LETTER DTD. 15/06/2010 SENT TO THE R.1.
ANNEXURE-VI: COPY OF THE TDS CERTIFICATE (FORM NO.16A).
ANNEXURE-VII: COPY OF THE LETTER DTD. 20/07/2010 SENT TO THE R.2. BY
THE PETITIONER.
ANNEXURE-VIII: COPY OF THE REPLY DTD. 30/07/2010 SENT BY THE R.2.
ANNEXURE-IX: COPY OF THE LAWYER NOTICE SENT BY THE PETITIONER.
ANNEXURE-X: COPY OF THE INTERIM REPLY DTD. 08/09/2010 SENT BY
THE R.1.
ANNEXURE-XI: COPY OF THE REPLY NOTICE DTD. 23/09/2010 SENT BY
THE R.2.
ANNEXURE-XII: COPY OF THE REPLY NOTICE DTD. 11/09/2010 SENT BY
THE R.2.
ANNEXURE-XIII: COPY OF THE POSTAL RECEIPT.
RESPONDENTS' EXHIBITS:
EXT.R1.A: COPY OF THE LETTER NO.HNL/EDP/CIVIL/01/203 OF THE R.1.
DTD. 27/07/2010 ISSUED TO THE R.2.
EXT.R1.B: COPY OF THE LETTER NO.SRO/PMD/584/001/4796 OF THE R.2.
DTD. 28/07/2010.
EXT.R2.A: COPY OF THE LETTER NO.103A/BBIPL-INFRA/EPIL-HNL/VOL.-
I/2008/4988 DTD. 22/10/2008.
EXT.R2.B: COPY OF THE LETTER DTD. 01/06/2010.
EXT.R2.C: COPY OF THE WORK ORDER NO.DLI/COM/584/319
DTD. 19/05/2008.
EXT.R2.D: COPY OF THE LETTER OF INTENT NO.SRO/MKT/F/04-502
DTD. 21/01/2008.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
P.N.RAVINDRAN, J.
=-=-=-=-=-=-=-=-=-=-=-=-=
Arbitration Request No.53 of 2010
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Dated this the 11th day of September, 2013
ORDER
The petitioner is a contractor undertaking civil works. The civil and structural works for paper machine plant, de-inking plant and captive power plant of the expansion-cum-diversification project (EDP) of Hindustan Newsprint Ltd., Kottayam District, Kerala State, the first respondent herein, was awarded to the second respondent as per work order dated 29.4.2008. In clause 7.1 in section H of the General Conditions of Contract it was provided that the whole of the works shall be executed by the contractor (the second respondent) and the contractor shall not directly or indirectly transfer, assign or sublet the contract or any part, share or interest therein nor shall he take a new partner without the written consent of the first respondent. It was also stipulated that no subletting shall relieve the second respondent from the full and entire responsibility of the contract or from active superintendence of the works during their progress. In clause 7.2 it was stipulated that if the contractor shall cause any part of the work to be performed by his approved sub-contractor, the provisions of the contract shall apply to such sub-contractor and his or its agents, officers or Arb. Request No.53 of 2010 2 employees in all respects as if he or it and they were employees of the main contractor and the main contractor shall not in any manner be discharged from his obligations and liability under the contract, but shall be liable for all acts and negligence of the sub- contractor, his or its agents, officers or employees, as if they were the employees of the main contractor. Paragraphs 7.1 and 7.2 occurring in section H of the General Conditions of Contract entered into between respondents 1 and 2 are extracted below for easy reference:-
"7.1 The whole of the works included in the Contract shall be executed by the CONTRACTOR and the CONTRACTOR shall not directly or indirectly transfer, assign, or sublet the Contract or any part, share or interest therein nor shall he take a new partner without the written consent of the CONSULTANT AND OWNER, and no subletting shall relieve the CONTRACTOR from the full and entire responsibility of the Contract or from active superintendence of works during their progress.
7.2 If the CONTRACTOR shall cause any part of the work to be performed by his approved SUB-CONTRACTOR, the provisions of this contract shall apply to such SUB- CONTRACTOR and his or its officers, agents or employees in all respects as if he or it and they were employees of the main CONTRACTOR and the main CONTRACTOR shall not in any manner hereby, be discharged from his obligations and liability hereunder, but shall be liable hereunder for all acts and negligence of Arb. Request No.53 of 2010 3 his SUB-CONTRACTOR, his or its officers, agents or employees, as if they were the employees of the main CONTRACTOR. No sub-contract shall be made by the main CONTRACTOR, without the approval of the OWNER AND CONSULTANT, of both the sub-contract and the SUB-CONTRACTOR, but no such approval of the OWNER AND CONSULTANT of both the sub-contract and the SUB-CONTRACTOR, shall effect, the provisions hereof. Copies of all such sub- contracts shall be furnished to the OWNER and to the CONSULTANT."
In paragraph 23.1 thereof it was stipulated as follows:
23.1 Any dispute or differences, whatsoever arising between the parties out of or the Construction, Meaning, Scope, Operation or effects of the contract arising out of the bid or the validity or the breach thereof shall be settled through the courts of law.
The courts of Kottayam shall have the jurisdiction for this purpose.
2. It appears the second respondent sub-contracted a portion of the work to the third respondent though this fact is disputed by the first respondent. The work order issued by the second respondent to the third respondent in that regard is on record as Ext.R2C. The scope of the work is mentioned in clause 1 thereof and it reads as follows:-
"1. Scope of Work: Civil work for Paper Machine Plant (PMP), De-inking Plant (DIP), Captive Power Plant (CPP) & other infrastructure facilities of Expansion cum Diversification Project (EDP) of Hindustan Newsprint Limited, Kottayam District, Kerala (client) Arb. Request No.53 of 2010 4 as given in the NIT documents of Hindustan Newsprint Limited and as per EPI's tender enquiry dated 27.06.2007 and its Corrigendum No.1 dated 04.07.07, Pre- Tender tie-up Agreement dated 20.07.2007 between EPI and M/s. BBIPL Infrastructure (India) Pvt. Ltd., LOA dated 14.01.2008 of client on EPI and LOI dated 21.01.2008 on M/s.BBIPL Infrastructure (India) Pvt. Ltd."
3. The said work order also contains an arbitration clause which reads as follows:-
"3. Arbitration Clause: Both EPI and the party shall make efforts to settle the disputes between them, if any amicably. Only if amicable settlement is not possible, the same shall be referred to the sole arbitration of the Chairman and Managing Director of EPI or the person appointed by the CMD, EPI and the decision of the arbitrator shall be final and binding on both EPI and the party. Arbitration will be according to EPI's clause for Conciliation & Arbitration, which is enclosed."
4. It is not in dispute that the third respondent in turn sub- contracted the work to the petitioner as per Annexure-I agreement entered into between the petitioner and the third respondent on 14.2.2008. The preamble to the agreement specifically refers to the work entrusted to the third respondent by Hindustan Newsprint Ltd. Clause 6 thereof contains an arbitration clause and it reads as follows:-
"6. All disputes and differences between the parties hereto howsoever relating to the Arb. Request No.53 of 2010 5 performance of the works under this agreement shall be referred to an Arbitration, who shall be a Civil Engineer/ Chartered Engineer and not connected or associated with the works in any manner."
5. After the work was completed, the petitioner demanded payment of the sum of Rs.87,25,000/- from the third respondent. The third respondent paid only the sum of Rs.59,11,413/- leaving a balance of Rs.28,13,587/-. When in spite of the repeated demands, the said amount was not paid, the petitioner sent Annexure-IV letter dated 1.6.2010 to the third respondent, demanding payment of the balance sum of Rs.28,13,587/- without delay. Copies thereof were sent to respondents 1 and 2 as well. When notwithstanding the said demand, payment was not effected, the petitioner caused Annexure-IX notice dated 27.8.2010 to be issued to the respondents calling upon them to take steps to nominate and appoint an Arbitrator with the concurrence of the petitioner as per clause 6 of Annexure-I agreement. The respondents were cautioned that in the event of failure, the petitioner will be constrained to take steps for the appointment of an Arbitrator. Upon receipt of Annexure-IX notice, the Company Secretary of the first respondent sent Annexure-X letter dated 8.9.2010 by way of interim reply informing the petitioner's counsel that a detailed reply would be Arb. Request No.53 of 2010 6 given within one month. The first respondent thereupon caused Annexure-XI letter dated 23.9.2010 to be issued. The stand taken therein was that there is no privity of contract or any kind of legal relationship between the petitioner and the first respondent, that one of the conditions of the work order issued by the first respondent to the second respondent was that the work shall not be sublet, that the second respondent has repeatedly informed the first respondent that it has not sub-contracted the work to any person and therefore, the first respondent is not responsible for the agreements alleged to have been entered by the petitioner with the third respondent or the works done by the petitioner under the said agreement. The first respondent took the stand that it is not liable for the claim made by the petitioner. As regards the request to nominate an Arbitrator, the first respondent took the stand that the request is misconceived in view of the fact that there is no agreement between the petitioner and the first respondent and there is no arbitration clause binding on the parties.
6. Upon receipt of Annexure-IX notice, the second respondent caused Annexure-XII letter dated 11.9.2010 to be sent in reply reiterating the stand taken by the first respondent. They also raised a contention that there is no privity of contract between the Arb. Request No.53 of 2010 7 petitioner and the second respondent and therefore, the petitioner is not entitled to seek a reference of the dispute to arbitration. The third respondent did not respond to Annexure-IX notice. The instant Arbitration request was thereupon filed on 28.10.2010 seeking the appointment of an Arbitrator (Civil Engineer/Chartered Engineer who is not connected with the dispute) to resolve the dispute between the petitioner and the respondents in respect of Annexure- I agreement dated 14.2.2008. In paragraph 4 of the arbitration request the petitioner has averred that the third respondent is a sub contractor/agent of respondents 1 and 2, that the contract between respondents 1 and 2 authorised the second respondent to subcontract the work, that there is privity of contract between respondents 1 and 3 and that the first respondent being the principal is liable for the acts done by its agents namely respondents 2 and 3.
7. The first respondent has sworn to a counter affidavit dated 7.12.2010. In paragraph 3 thereof, the first respondent has averred that there is no privity of contract or any other kind of relationship between the petitioner and the first respondent and that there is no agreement much less an agreement containing an arbitration clause between the petitioner and the first respondent. Arb. Request No.53 of 2010 8 In paragraph 4 thereof the first respondent has averred that the work order issued to the second respondent specifically stipulates that the second respondent shall not sub-contract the work, that the second respondent had by letters dated 22.7.2008, 19.8.2008 and 8.1.2009 informed the first respondent that it had not subcontracted the work, that later, the second respondent informed the first respondent by letter dated 8.1.2009 that it had engaged three parties including the third respondent for supply of experienced supervisors and workers on labour contract basis for different types of work, that the consent, oral or written, of the first respondent was not obtained for awarding the alleged work to the petitioner and therefore, the application as against the first respondent is not maintainable. The petitioner's contention that the third respondent is a sub-contractor or agent of the first respondent was denied in paragraph 5 and in paragraph 6 the first respondent contended that as the first respondent is not a party to Annexure-I agreement, it is not binding on it.
8. The second respondent has sworn to a counter affidavit dated 14.1.2011. In paragraph 4 thereof the second respondent has averred that there is no privity of contract between the second respondent and the petitioner, that the second respondent is not a Arb. Request No.53 of 2010 9 party to Annexure-I agreement, that there is no dispute between the petitioner and the second respondent and that the mere fact that the third respondent had undertaken a sub-contract work from the second respondent will not create privity of contract between the petitioner and the second respondent. In paragraph 6 thereof, the second respondent has denied the petitioner's averment that the third respondent is an agent of the second respondent. In paragraph 8 thereof, the second respondent has pleaded that it is unaware of the contract or transaction between the petitioner and the third respondent, that though the second respondent had sub- contracted a work to the third respondent, the work was terminated since the third respondent committed breach of contract. In paragraph 10 the second respondent has contended that it even suspects collusion between the petitioner and the third respondent in issuing Annexure-IX notice.
9. The second respondent has sworn to an additional counter affidavit dated 21.2.2011. In paragraph 6 thereof it is stated that when the second respondent sub-contracted the work to the third respondent there was an understanding that funds given by the second respondent to the third respondent for execution of the work shall not be diverted by the sub-contractor and the third respondent Arb. Request No.53 of 2010 10 used to give a letter to the second respondent showing its outstanding liability to private agencies, in connection with the work and requested to disburse the amount in the name of those private agencies. A copy of one such letter dated 22.10.2008 is produced as Ext.R2-A. Relying on Ext.R2-B letter dated 1.6.2010 sent by the petitioner to the third respondent it is contended in paragraph 7 that the said letter would show that the petitioner had claimed the balance amount only from the third respondent and not from the second respondent and this in turn shows that there is no contractual relationship between the second respondent and the petitioner. The second respondent has also stated that amounts were disbursed by it in the name of the petitioner in accordance with the request in Ext.R2-B letter and the mere issuance of a TDS certificate will not create contractual relationship between the second respondent and the petitioner. The third respondent has not till date filed a counter affidavit, though it has entered appearance through counsel.
10. When this arbitration request came up for hearing before me on 20.8.2013, after hearing learned counsel on both sides, I directed the first respondent to place on record the agreement entered into by it with the second respondent and likewise directed Arb. Request No.53 of 2010 11 the second respondent to place on record the agreement entered into by it with the third respondent. The first respondent has accordingly placed on record a copy of the work order dated 29.4.2008 as also the General Conditions of Contract forming part thereof. The second respondent has likewise produced along with an affidavit, a copy of the work order dated 19.5.2008 issued by it to the third respondent. Clause 7 in section H of the General Conditions of Contract forming part of the agreement entered into between the first respondent and the second respondent extracted above, contains a stipulation to the effect that the contractor (the second respondent) shall not subcontract the work or transfer or assign the work without the written consent of the first respondent. Clause 23 thereof contains the stipulation to the effect that any dispute or difference whatsoever arising between the parties to the agreement shall be settled through the courts of law. In other words, there is no agreement between respondents 1 and 2 to refer the disputes between them to arbitration. On the other hand, clause 3 of the work order issued by the second respondent to the third respondent contains an arbitration clause. It is stipulated that disputes between the parties shall be referred to the sole arbitration of the Chairman and the Managing Director of the second Arb. Request No.53 of 2010 12 respondent or the person appointed by the Chairman and the Managing Director of the second respondent. As stated earlier, Annexure-I agreement entered into between the petitioner and the third respondent also contains an arbitration clause with the stipulation that the Arbitrator shall be a Civil Engineer or a Chartered Engineer not connected or associated with the works in any manner. The short question that arises for consideration in this arbitration request is whether the claim made by the petitioner in Annexure-IX letter for demanding payment of the sum of Rs.28,13,587/- by the respondents and the failure of the respondents to accede to that demand has given rise to a dispute which is capable of being resolved by arbitration.
11. I heard Sri.K.Gopalakrishna Kurup, learned Senior Advocate appearing for the petitioner, Sri.E.K.Madhavan, learned counsel appearing for the first respondent, Sri.Alias M.Cherian, learned counsel appearing for the second respondent and Sri.Joy Thattil Ittoop, learned counsel appearing for the third respondent. Sri.K.Gopalakrishna Kurup, learned Senior Advocate appearing for the petitioner contended relying on section 226 of the Contract Act and the observations of the Apex Court in Chloro Controls India Private Ltd. v. Severn Trent Water Purification Inc. and Arb. Request No.53 of 2010 13 Others [(2013) 1 SCC 641] more particularly the observations in paragraphs 102, 103, 103.1, 103.2, 104, 105 and 107 thereof, that the reference of even non-signatory parties to arbitration can be made if agent-principal relationship is made out. The learned Senior Advocate contended with reference to the work order issued by the second respondent to the third respondent that the work awarded by the second respondent to the third respondent was the very same work which was awarded by the first respondent to the second respondent, that the work was completed involving the petitioner as well, that no objection was taken by the first respondent at any stage of the execution of the work to the sub- contracting of the work either by the second respondent or by the third respondent, that even clause 7 did not prohibit sub-contracting of the work but only stipulated that sub-contracting shall be done only with the written consent and that from the materials on record it is evident that the work was sub-contracted with the implied consent of the first respondent and therefore, notwithstanding the fact that the first respondent is not a party to Annexure-I agreement, the first respondent also can be made a party to the arbitration proceedings. The learned Senior Advocate appearing for the petitioner contended that from the pleadings and the materials Arb. Request No.53 of 2010 14 on record it is evident that the second respondent was acting as an agent of the first respondent, that the third respondent was likewise acting as an agent of the second respondent, that the work was carried out by the petitioner and therefore, the contract which was entered into by the first respondent with its agents namely respondents 2 and 3 can be enforced as if it had been entered into by the first respondent itself with the petitioner.
12. Per contra, Sri.E.K.Madhavan and Sri.Alias M.Cherian, learned counsel appearing for respondents 1 and 2 contended that there is no privity of contract between the petitioner on the one hand and respondents 1 and 2 on the other, that the agreement entered into between the first respondent and the second respondent does not contain an arbitration clause but stipulates that the disputes if any between the parties shall be settled through courts of law thereby ruling out arbitration and therefore, as the principal agreement does not contain an arbitration clause, even assuming that the work was sub-contracted by the second respondent to the third respondent and by the third respondent to the petitioner with the permission of the first respondent, the first respondent cannot be joined as a party to the arbitration proceedings. The learned counsel appearing for respondents 1 and Arb. Request No.53 of 2010 15 2 contended that though there is an arbitration clause in the work order issued by the second respondent to the third respondent neither the first respondent nor the petitioner are parties to the said agreement and therefore, the said arbitration clause also cannot be relied on to refer the parties to arbitration. Though the third respondent has not filed a counter affidavit, Sri.Joy Thattil Ittoop, learned counsel appearing for the third respondent contended that the work has been performed and therefore, the arbitration clause in Annexure-I agreement does not survive.
13. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. It is evident from the pleadings and the materials on record that the first respondent is not a party to Annexure-I agreement or to the agreements entered into between respondents 2 and 3. It is also evident from the pleadings and the materials on record that the principal agreement namely the agreement entered into between respondents 1 and 2 does not contain an arbitration clause. On the other hand, in paragraph 23.1 thereof it is stipulated in categorical terms that any dispute between parties shall be settled by the courts of law thereby ruling out resolution of the disputes if any Arb. Request No.53 of 2010 16 between the parties by arbitration. The Apex Court has in Indowind Energy Limited v. Wescare (India) Limited and Another (2010 (5) SCC 306) held that an arbitration clause found in an agreement between two parties cannot be considered as a binding arbitration agreement on a person who is not a signatory to the agreement. The Apex Court has in S.N.Prasad v. Monnet Finance Ltd. & Ors. [2011 (1) KLJ 88 (SC)] held that there can be reference to arbitration only if there is an arbitration agreement between the parties. It was held that an Arbitrator can be appointed under the Arbitration and Conciliation Act, 1996 at the instance of a party to an arbitration agreement only in respect of disputes with another party to the arbitration agreement and if there is a dispute between a party to an arbitration agreement, with other parties to the arbitration agreement as also non-parties to the arbitration agreement, reference to arbitration or appointment of arbitrator can be only with respect to the parties to the arbitration agreement and not the non-parties. Though the learned Senior Advocate appearing for the petitioner contended relying on the recent decision of the Apex Court in Chloro Controls India Private Limited v. Severn Trent Water Purification Inc. and Others (2013 (1) SCC 641) that even non-signatory parties to an Arb. Request No.53 of 2010 17 arbitration agreement can be referred to arbitration if the non- signatory party to the arbitration agreement is an agent of the principal, in my opinion, even assuming that a non-signatory party to an agreement can be referred to an arbitration, it can apply only in cases where there are principal and subsidiary agreements and in the principal agreement there is an arbitration clause and the circumstances indicate the mutual intention of the parties to bind both the signatory as well as the non-signatory parties.
14. In the instant case, even assuming that the work was sub-contracted by the second respondent to the third respondent with the written consent of the first respondent, as the first respondent is not a signatory to the agreement entered into between the second respondent and the third respondent and as the principal agreement entered into between the first respondent and the second respondent does not contain an arbitration clause, I am of the considered opinion that the first respondent who is not a signatory to the agreement entered into between respondents 2 and 3 or the agreement between the petitioner and the third respondent, will not be bound by the arbitration clause therein.
15. That takes me to the question whether respondents 2 and 3 can be referred to arbitration. Clause 3 of Ext.R2(c) work Arb. Request No.53 of 2010 18 order issued by the second respondent to the third respondent stipulates that if any dispute arises between them they shall make efforts to settle the disputes amicable and if amicable settlement is not possible, the same shall be referred to the Chairman and Managing Director of the second respondent or the person appointed by the Chairman and Managing Director of the second respondent for arbitration. On the terms of Ext.R2(c) agreement, the arbitration clause therein can operate only between respondents 2 and 3. That apart, the Arbitrator designated by respondents 2 and 3 is the Chairman and Managing Director of the second respondent or the person appointed by him. On the other hand, clause 6 of Annexure-I agreement entered into between the petitioner and the third respondent stipulates that all disputes between the parties shall be referred to a Civil Engineer/Chartered Engineer who is not connected or associated with the works in any manner. As the stipulations in the arbitration agreements militate against each other and the second respondent is admittedly not a party to Annexure-I agreement, I am of the considered opinion that the second respondent also cannot be made a party to the dispute between the petitioner on the one hand and the third respondent on the other.
Arb. Request No.53 of 2010 19
16. Then the only question is whether the request to appoint an Arbitrator to resolve the disputes between the petitioner on the one hand and the third respondent on the other merits acceptance. As stated earlier, the third respondent has not so far filed a counter affidavit objecting to the request made in the instant arbitration case. The third respondent has no case that the disputes do not exist between the petitioner and the third respondent. Though the learned counsel appearing for the third respondent contended that the work has been performed and the arbitration clause does not survive, as the petitioner has made claim for the sum of Rs.28,13,587/- and the said payment has not been made, there exists a dispute between the petitioner and the third respondent arising out of the performance of Annexure-I agreement. It has therefore, to be necessarily held that the dispute between the petitioner on the one hand and the third respondent on the other, arising out of Annexure-I agreement requires to be referred to arbitration.
17. When the Arbitration Request was heard on 10.9.2013, Sri.K.Gopalakrishna Kurup, learned Senior Advocate appearing for the petitioner, handed over a list containing the names of two persons for appointment as arbitrator. They are (i) Sri.G. Arb. Request No.53 of 2010 20 Gopalakrishnan Nair, Retd. Deputy Chief Engineer (Railway), Sudharshanan, 244, Bhavana Nagar, Kadappakada, Kollam and
(ii) Sri.M.P.Abraham, Rtd. Deputy Chief Engineer (Railway), International Arbitrator, Ashisha Mangalath, Kakkanad West-682
030. During the course of arguments, copies of the said list were furnished to the learned counsel appearing for the respondents. The learned counsel appearing for the respondents did not object to the appointment of either of the said two persons as the arbitrator.
In such circumstances, I appoint Sri.G.Gopalakrishnan Nair, Retd. Deputy Chief Engineer (Railway), Sudharshanan, 244, Bhavana Nagar, Kadappakada, Kollam as arbitrator to resolve the disputes between the petitioner on the one hand and the third respondent on the other, arising out of Annexure-I agreement dated 14.2.2008. The arbitrator shall enter upon reference and dispose of the case expeditiously. The arbitration request, insofar as it relates to respondents 1 and 2 is dismissed. No costs.
Sd/-
P.N.RAVINDRAN JUDGE /true copy/ P.A. To JUDGE vpv/vps/mrcs