Kerala High Court
Rds Project Limited vs Union Of India on 3 February, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941
AR.No.116 OF 2019
PETITIONER:
RDS PROJECT LIMITED,
SHIHAB THANGAL ROAD, NEAR PASSPORT OFIFCE, PANAMPALLY
NAGAR, KOCHI-682 036, REPRESENTED BY ITS MANAGING
DIRECTOR (THEN JT. MANAGING DIRECTOR), SHRI. SUMIT
GOYAL, AGED 64 YEARS.
BY ADV. SRI.P.JAYABAL MENON
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY THE CHIEF ENGINEER (NW), MILITARY
ENGINEERING SERVICES, NAVAL BASE P.O., KOCHI-682 004.
2 ENGINEER-IN-CHIEF,
DIRECTORATE OF CONTRACT MANAGEMENT,
INTEGRATED HQ OF MINISTRY OF DEFENCE (ARMY),
KASHMIR HOUSE, RAJAJI MARG, NEW DELHI-110 011.
R1-2 BY SMT.O.M.SHALINA, CGC
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON
03.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AR.No.116 OF 2019 2
ORDER
The above captioned application is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('Act 3 of 2016' for short) seeking for an appointment of an Arbitrator to resolve the disputes between the parties herein, pursuant to an agreement entered into between the parties on 23.2.2011.
2. According to the applicant, the applicant was awarded with a contract for building security wall, watch towers and peripheral roads along the boundary of the Ezhimala Academy, Ezhimala by the respondents. Due to various reasons, which include non fulfillment of contractual obligations by the 1st respondent, the contract was prolonged from three years to seven years. The applicant however managed to complete the entire work on 5.4.2018. Though a final bill was realized, no steps were taken by the respondents to release the same. According to the applicant, the tender agreement is a binding contract and clause No.70 of the IAFW 2249- General conditions of Contract provides for Arbitration. Since no steps were taken by the respondents despite repeated request being made by the applicant, he has approached this Court with this petition. AR.No.116 OF 2019 3
3. The respondents have filed a statement wherein they also agree that an officer can be appointed from the list of Arbitrators as given in Annexure -R2(f) as the Sole Arbitrator.
4. Heard Sri. P.Jayabal Menon, the learned Counsel appearing for the applicant and Sri.O.M.Shalina, the learned Central Government Counsel.
5. I have considered the submissions advanced. Both sides have submitted a panel of Arbitrators of retired officers from the Military Engineering Service. Both sides agree on appointing either of the two officers shown in the panel of Arbitrators submitted by the applicant. I am therefore required to exercise my discretion under Section 11 and make appointment of Sole Arbitrator.
6. In the result, the following order is passed:
(a) I nominate Brigadier M.P.Yadav VSM, Retired Chief Engineer, Military Engineering Services, 702-A, Swastik Ganga, Sopan Baug, Pune - 411 001, as the Sole Arbitrator to decide the dispute and differences between the parties as per Clause No. 70 of the IAFW 2249.
(b) A copy of this order shall be communicated to the learned Sole Arbitrator by the Advocate of the applicant within a period of one week from today. A copy of the order shall also AR.No.116 OF 2019 4 be forwarded to the learned Sole Arbitrator by the Registry in the address shown above.
(c) The Arbitrator is requested to forward his statement of disclosure under Section 11(8) r/w. Section 12(1) of the Act 3 of 2016. The disclosure statement shall be placed before this Court for confirmation of the appointment of the Arbitrator.
The Registry shall retain a copy of the original.
(d) The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017. Both parties agree that the arbitration costs and fees shall be shared equally.
This Arbitration Request is allowed as above.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE sru AR.No.116 OF 2019 5 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE 1 TRUE COPY OF THE IST PAGE OF THE TENDER AGREEMENT NO.CE(NW)/KOCHI/EZH/60 OF 2010-2011 EXECUTED BETWEEN THE PETITIONER AND THE IST RESPONDENT.
ANNEXURE 1(a) TRUE COPY OF THE 55TH PAGE OF THE TENDER AGREEMENT NO.CE(NW)/KOCHI/EZH/60 OF 2010-2011 EXECUTED BETWEEN THE PETITIONER AND THE IST RESPONDENT.
ANNEXURE 1(b) TRUE COPY OF THE 59TH PAGE OF THE TENDER AGREEMENT NO.CE (NW)/KOCHI/EZH/60 OF 2010-2011 EXECUTED BETWEEN THE PETITIONER AND THE IST RESPONDENT.
ANNEXURE 1(c) TRUE COPY OF THE PENULTIMATE AND THE LAST PAGE OF THE TENDER AGREEMENT NO.CE(NW)/KOCHI/EZH/60 OF 2010-2011 EXECUTED BETWEEN THE PETITIONER AND THE IST RESPONDENT.
ANNEXURE 2 THE IST AND 2ND PAGE OF IAFW 2249- GENERAL CONDITIONS OF CONTRACT.
ANNEXURE 2(a) THE PAGES CONTAINING CLAUSE 70, VIZ THE ARBITRATION CLAUSE, OF IAFW 2249-GENERAL CONDITIONS OF CONTRACT.
ANNEXURE 3 TRUE COPY OF THE NOTICE ISUSED BY THE PETITIONER TO THE RESPONDENTS, DATED 12.7.2019.
RESPONDENTS' EXHIBITS:
ANNEXURE R2(A) TRUE COPY OF THE LETTER DATED 23.2.2011 ADDRESSES TO M/S RDS PROJECT LIMITED ANNEXURE R2(B) TRUE COPY OF THE WORK ORDER NO.1 ISSUED BY THE GARRISON ENGINEER (P) NO.2 EZHIMALA ON 22.3.2011 ANNEXURE R2(C) TRUE COPY OF THE RELEVANT PAGE OF CONDITION 70 OF IAFW-2249, GENERAL AR.No.116 OF 2019 6 CONDITIONS OF CONTRACT FOR LUMPSUM CONTRACTS ANNEXURE R2(D) TRUE COPY OF THE SERIAL PAGE NO.55 OF CONTRACT AGREEMENT WHICH DEALS WITH TENDER AND TYPED COPY ANNEXURE R2(E) TRUE COPY OF THE LETTER NO.RDS/EZH/ARB NOTICE/01 DATED 12.07.2019 ANNEXURE R2(F) TRUE COPY OF THE LIST OF ARBITRATORS HAS BEEN PREPARED BY THE 2ND RESPONDENT OFFICE