Kerala High Court
Respondent vs In The High Court Of Kerala At Ernakulam on 17 February, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
THE MONDAY, PETITIONER: RESPONDENT : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941 AR.No.118 OF 2019 M/S .VELLAPALLY BROTHERS POST BOX NO.45, VELLAPALLY LANE, KOTTAYAM-686 001 REPRESENTED BY ITS MANAGING PARTNER, MR. MATHEW ALEX VELLAPALLY. BY ADVS. SRI.AJIT JOY SRI.ANEESE JAMES SRI.JIJO THOMAS SMT .M.D.BEENA SUNTEC INFRASTRUCTURE PVT.LTD. T.C-4/2324(1), KURAVANKONAM, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003 REPRESENTED BY ITS CHIEF FINANCE OFFICER. Rl BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAT SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SMT .S.PARVATHI SRI.P.GOPINATH (SR.)} THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 17.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AR.No.118 OF 2019 2 ORDER
The present petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('Act 3 of 2016' for short) seeking for the following reliefs:
i) In the light of the fact that the work as per Annexure Al contract is ongoing at the site, pending appointment of an Arbitrator, a mediator may be appointed to be assisted by a technical expert in civil contracts to try and 'mediate and resolve the current two points of dispute between the petitioner and the respondent arising out of Annexure Al contract in relation to the imposition of liquidated damages and payments for additional quantities of structural steel within a period of one month.
ii) If mediation as sought for above is unsuccessful, appoint a Sole Arbitrator in accordance with Clause 29(2) of Annexure A2 General Conditions of Contract which forms part of Annexure Ai contract executed between the petitioner and the respondent and the sole arbitrator so appointed may adjudicate the disputes and differences between the parties arising from Annexure Ai contract as amended.
2. On 15.01.2020, the following order was passed:
"Heard Sri.Ajit Joy, the learned counsel appearing for the petitioner and Sri.P.Gopinath Menon, the learned senior counsel appearing for the respondent.
The learned counsel appearing for the petitioner submitted that before considering the application under Section 11 (6) of the AR.No.118 OF 2019 3 S.Siri Jagan, Former Judge of this Court and it appears that mediation was held with the assistance of a technical expert and the parties have managed to settle the issues. The memorandum of settlement is produced before this Court. The memorandum of settlement is accepted and the parties are directed to abide by its terms. The memorandum of settlement Arbitration and Conciliation Act, 1996, on its merits, a mediator be appointed to be assisted with a technical expert to try and mediate and resolve the dispute that has arisen between the petitioner and respondent arising out of Annexure Ai contract. The learned senior counsel appearing for the respondent is agreeable to the said suggestion.
Both sides have suggested the name of Justice S. Siri Jagan, a Former Judge of this Court be appointed as mediator. Having considered the submissions, I am of the view that necessary directions can be issued so that the parties may make an attempt to resolve their disputes, particularly since the construction work is still going on."
In terms of the order, the parties appeared before Justice shall form part of the order.
IAP This Arbitration Request is closed. Sd/-
RAJA VIJAYARAGHAVAN V JUDGE AR.No.118 OF 2019 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE Al ANNEXURE A2 ANNEXURE A3 ANNEXURE A4 ANNEXURE A5 ANNEXURE A6 ANNEXURE A7 ANNEXURE A8 ANNEXURE A9 ANNEXURE A10 A TRUE COPY OF THE AGREEMENT DATED 21.12.2017 ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT.
A TRUE COPY OF THE RELEVANT PAGES OF THE GENERAL CONDITIONS OF CONTRACT. A TRUE COPY OF THE EMAIL COMMUNICATION OF THE RESPONDENT DATED 23.11.2018. A TRUE COPY OF THE LETTER DATED 9.1.2019 ISSUED BY THE PETITIONER. A TRUE COPY OF THE COMMUNICATION DATED 24.1.2019 GIVEN BY THE PETITIONER. A TRUE COPY OF THE LETTER DATED 26.3.2019 ISSUED BY THE PETITIONER. A TRUE COPY OF THE LETTER DATED 29.3.2019 SUBMITTED BY THE PETITIONER TO THE PROJECT MANAGER OF THE RESPONDENT .
A TRUE COPY OF THE COMMUNICATION DATED 2.9.2019 ISSUED BY THE PETITIONER TO THE PROJECT MANAGER OF THE RESPONDENT. A TRUE COPY OF THE NOTICE INVOKING ARBITRATION DATED 8.11.2019 ISSUED BY THE PETITIONER.
A TURE COPY OF THE REPLY DATED 26.11.2019 ISSUED BY THE RESPONDENT. RESPONDENT'S EXHIBITS:
NIL IN THE HON'BLE HIGH COURT OF KERALA AT ERNAKUL.AM AR No. 118/2019 M/s. Vellapally Brothers - Petitioner Vs. Suntec Infrastructure Pvt. Ltd. " Respondent Report submitted by the Mediator and Technical Excert appointed by the Honourable Honourable Court of Kerala IN THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM AR No. 118/2019 M/s. Vellapally Brothers : Petitioner Vs. Suntec Infrastructure Pvt. Ltd. Respondent INDEX SI.No Description Page Nos.
1. Report submitted by the Mediator and Technical Expert appointed by this Hon'ble Court 1
2. Settlement in original signed By the Petitioner and the respondent in the Course of the Mediation process. 2to5 Dated this the 14" day of February 2019 "S. Siri Jagan Mediator a' Technieal Expert IN THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM AR No. 118/2019 M/s. Vellapally Brothers " Petitioner Vs. Suntec Infrastructure Pvt. Ltd. Respondent Report submitted by the Mediator and Technical Expert appointed by this Honourable Court by order dated 15-01-2020 In the mediation process initiated pursuant to the order of this Honourable Court dated 15" January 2020, the parties agreed to settle the matter in mediation and signed a settlement on mutually agreed terms. The settlement in original is forwarded herewith, for further orders of this Honourable Court as deemed fit and proper.
Dated this the 14" day of February 2020. . S. Siri Jagan Mediator Je Technical Expert BEFORE THE HON'BLE HIGH COURT OF KERALA ARB REQUEST No: 118 OF 2020 M/s. Vellapally Brothers Claimant Vs M/s. SunTec Infrastructure Pvt Ltd. --: Respondent SETTLEMENT OF PARTIES IN MEDIATION BEFORE MEDIATOR MR. JUSTICE SIRI JAGAN, FORMER JUDGE, HIGH COURT OF KERALA AND TECHNICAL EXPERT MR. SANJEEVAN R, CIVIL ENGINEER DATED 07.02.2020
1. Based on mutual discussions, the parties have agreed to settle the issues below in the following manner. A. Vermiculate Fire Proofing SunTec will pay VB Rs.1,100/- per Square Meter for Vermiculite painting of the beams. The payment would be made as per the actual site measurement including the work already completed.The measurement would include all four surfaces including the beam surface which is in contact with the deck sheet. Vermiculite painting will not be applied to columns. It was also agreed that in lieu of vermiculate painting being shifted to actual measutement, the amount considered of Rs. 2, 82, 72,156/- will be deducted from the lump sum contract.
B, Intumescent Paint:
Intumescent painting (interior and exterior) would be de-scoped from the scope of work allotted to VB in the Contract and the work shall be taken over by SunTec. AS a aafesult For VELLAPALLY BROTH 56,644 towards the said painting will be deducted from the lump sum as per the terms of the contract.
C. Lift:
a. Lift to be de-scoped ftom the scope of work allotted to VB in the Contract and the said work shall be taken over by SunTec. As of a result of which, an amount of Rs. 2, 90, 47,453/towards the said work will be deducted from the lump sum contract as per the terms of the contract.
b. VB has agteed that the lift shaft will be handed over to SunTec as per the agreed drawings so as to enable the erection of the lift without the need for any further civil work. Among other things, VB shall ensure that there is no water seepage, the shaft is proper and vertical in alignment, and all opening and cut out should be as pet drawings, grinding to be done wherever requited so that the shaft is handed over to SunTec in a proper manner.
D. SunTec is free to engage any third party to complete B and C above which is the de-scoped work.
E. Structural Steel: There will be no addition or reduction in the quantity. The revised value of SSW will be calculated as original values of SSW less value of the de-scoped portion.
F. Liquidated Damages:
a. Further deduction of LD is kept on hold.
b. VB undertakes to complete the entire scope of work within 120 days for structural steel and structural civil works for the tower as per the good for construction (GFC) drawings issued.. The said 120 days will commence 15(fifteen) days or VELLAPALLY BROTHERS oy :
: ly Paver é date of approval of the Report of settlement by the Hon'ble High Court, whichever is earlier.
. If VB is successful in completing the entire scope of work for structural steel and structural civil works for the tower within the time period prescribed in (b), then VB shall be entitled to a refund of 30% of the LD deducted till date. VB will be entitled to a further refund of 5% of the LD for every 7 days of early completion before the 120° day. Illustration: If VB completes the structure on the 64" day, then VB is entitled to a refund of 70% of the LD deducted i.e. 30% as per condition
(b) and 40% as per condition .
. The above time schedule excludes the work on LGF grade slab, which will be completed by VB within 15 days of handing over by SunTec. SunTec will handover that portion for work, at least 30 days prior to the completion of the 120 days.
G. Additional Mobilization Advance a. SunTec as an assistance to handle VB's cash flow situation, has agreed to advance an amount of Rs.1,75,00,000 Crores (One Crore Seventy Five Lakhs Only), as additional mobilization advance for structural steel, which will be deducted from the running bills along with the deduction for the earlier mobilization advance. . The said amount will be handed over to VB by SunTec within two bank working days of SunTec receiving the signed settlement agreement from VB.
H. Material advance Upon receipt of structural steel at the site by VB, SunTec agrees to pay 75% of the material cost as material advance. The material . AL os fi aapehapally Partner VB. Such material advance shall be deducted against immediate subsequent running bills raised by VB.
(SunTec Infrastructure Pvt Ltd) GNijaya Raghavav (Diveciov ) (M/s. Vellapally Brothers) Partner a A 2 Xe (Counsel for VB) (Counsel for SunTec) TECHNICAL EXPERT Page 4 of 4