Kerala High Court
G.Koteswara Rao vs The General Manager on 5 December, 2018
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940
AR.No. 95 of 2018
PETITIONER/S:
G.KOTESWARA RAO
AGED 54 YEARS
S/O. G. MASTHANIAH, RAILWAY CONTRACTOR,
NO. 34/1, DURGASRI, 2 ND MAIN ,G.R. NAGAR, OPPOSITE
BDA COMPLEX, VIJAYANAGAR, BANGALORE 560 040
BY ADVS.
SRI.T.C.GOVINDA SWAMY
SMT.KALA T.GOPI
RESPONDENT/S:
1 THE GENERAL MANAGER, SOUTHERN RAILWAY
PARK TOWN PO, CHENNAI-600 003.
2 THE CHIEF ENGINEER
CONSTRUCTION, SOUTHERN RAILWAY, ERNAKULAM SOUTH,
KOCHI - 682 016.
3 THE DEPUTY CHIEF ENGINEER - II
CONSTRUCTION, SOUTHERN RAILWAY, ERNAKULAM SOUTH,
KOCHI - 682 016.
BY ADV. SRI.C.S.DIAS, SC, RAILWAYS
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 05.12.2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AR.No. 95 of 2018
2
O R D E R
Petitioner is a contractor, who entered into Annexure A1 agreement with the 3 rd respondent in respect of certain construction work. Their arose certain disputes in respect of the contract. As per the general conditions of contract in Annexure A3 there is a provision for settlement of disputes in Clause 63 which reads as follows:
63.Matters Finally Determined By The Railway: All disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be referred by the contractor to the GM and the GM shall, within 120 days after receipt of the contract's representation, make and notify decisions on all matters referred to by the contractor in writing provided that matters for which provision has been made in Clauses 8, 18, 22(5) 39, 43(2), 45(a), 55, 55A(5), 57, 57A, 61(1), 61(2) and 62(1) to (xiii) (B) of Standard General Conditions of Contractor or in any Clause of the Special Conditions of the Contract shall be deemed as 'excepted matters' (matters not arbitrable) and decisions of the Railway authority, thereon shall be final and binding on the contractor; provided further that 'excepted matters' shall stand specifically excluded from the purview of the Arbitration Clause.AR.No. 95 of 2018 3
2. Clause 64 deals with demand for arbitration and the procedure thereof. Clause 64.1(i) reads as follows:
In the event of any dispute or difference between the parities hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the "excepted matters" referred to in Clause 63 of these Conditions, the contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters shall demand in writing that the dispute or difference be referred to arbitration.
3. Clause 64.3 deals appointment of Arbitrator. Petitioner claims that he had already requested to refer the dispute to arbitration as per Annexure-A2 letter, addressed to the General Manager-the first respondent, while raising claims for payment. Subsequent to that, the petitioner again addressed the General Manager with Annexure-A4 letter on 05.02.2018, reminding that he had already requested for arbitration. As per Annexure-A5 letter dated AR.No. 95 of 2018 4 23.05.2018, the second respondent informed the petitioner that claims raised by him are not admissible as per the general conditions of contract.
4. In the above circumstances, the petitioner has filed this arbitration request pointing out that the respondents did not appoint an Arbitrator, even after completion of 120 days of his letter Annexure- A2 as well as Annexure A4.
5. Respondents have filed a counter affidavit stating that petitioner has not followed the procedure provided in the general conditions of contract for seeking appointment of an Arbitrator by making a demand to the second opposite party, Chief Engineer before filing the application under Section 11 of the Arbitration and Conciliation Act, 1996, before this Court. It is stated that petitioner ought to have made a demand for arbitration on receipt of Annexure- A5 letter from the respondents.
Having considered the contentions on both AR.No. 95 of 2018 5 sides, I find that it will be open to the petitioner to approach the first respondent with a demand for Arbitration, in terms of the provisions contained in Clause 64. In that event, there cannot be any impediment for the first respondent to appoint an Arbitrator/Arbitrator Tribunal in accordance with the provisions in Annexure A3. In case, the petitioner makes a demand within a period of 'three weeks' from the date of receipt of a copy of the order, the first respondent shall appoint Arbitrator/Arbitrator Tribunal within a further period of 60 days.
The Arbitration Request is disposed of accordingly.
Sd/-
P.V.ASHA, JUDGE.
AS AR.No. 95 of 2018 6 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE AGREEMENT NO.10/DCE/ERS/2015 DATED 12.08.2015 IN RELATION TO THE WORKS CONTRACT ENTERED INTO BETWEEN THE APPLICANT AND THE RESPONDENTS.
ANNEXURE A2 TRUE COPY OF THE FINAL CLAIM AND REQUEST TO REFER THE MATTER FOR ARBITRATION DATED 19.10.2017.
ANNEXURE A3 TRUE EXTRACT OF THE INDIAN RAILWAY ARBITRATION RULES AS CONTAINED IN RULE 63 TO 64 (7) OF THE INDIAN RAILWAY GENERAL CONDITIONS OF CONTRACT AS PUBLISHED BY THE MINISTRY OF RAILWAYS.
ANNEXURE A4 TRUE COPY O THE DEMAND DATED 05.02.2018, ADDRESSED TO THE 1ST RESPONDENT SENT BY REGISTERED POST ACKNOWLEDGMENT DUE ON 12.02.2018.
ANNEXURE A5 TRUE COPY OF THE COMMUNICATION BEARING NO.W.148/CN/ERS/ARB. DATED 23.05.2018, ISSUED BY THE 2ND RESPONDENT.