Karnataka High Court
M/S. Spml Infra Limited vs The Commissioner on 29 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC:8836
CMP No. 337 of 2023
C/W CMP No. 338 of 2023
CMP No. 339 of 2023
CMP No. 340 of 2023
CMP No. 341 of 2023
CMP No. 342 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CIVIL MISC. PETITION No. 337 OF 2023
C/W
CIVIL MISC. PETITION No. 338 OF 2023
CIVIL MISC. PETITION No. 339 OF 2023
CIVIL MISC. PETITION No. 340 OF 2023
CIVIL MISC. PETITION No. 341 OF 2023
CIVIL MISC. PETITION No. 342 OF 2023
IN CMP No.337/2023:
BETWEEN:
M/S. SPML INFRA LIMITED
(FORMERLY SUBHASH PROJECTS
AND MARKETING LTD)
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT No. F-27/12
OKHLA INDUSTRIAL AREA
PHASE-II, NEW DELHI - 110 026.
AND
REGIONAL OFFICE AT
# 27, MANASSU, 1ST FLOOR
MALLIKARJUNA TEMPLE STREET
PUTTANNA ROAD, BASAVANAGUDI
Digitally signed by
VANDANA S BENGALURU - 560 004.
Location: High
Court of Karnataka
DULY REPRESENTED BY ITS AUTORIZED REPRESENTATIVE
SRI.O. VISHVESWARAIAH, VICE PRESIDENT.
...PETITIONER
(BY SRI S SRIRANGA, SENIOR COUNSEL FOR
SRI SHARATH CHANDRA J, ADVOCATE)
-2-
NC: 2024:KHC:8836
CMP No. 337 of 2023
C/W CMP No. 338 of 2023
CMP No. 339 of 2023
CMP No. 340 of 2023
CMP No. 341 of 2023
CMP No. 342 of 2023
AND:
THE MUNICIPAL COMMISSIONER
CITY MUNICIPAL COUNCIL
SINDHANUR - 584 128
RAICHUR DISTRICT.
...RESPONDENT
(BY SRI PRASHANTH KUMAR D, ADVOCATE)
THIS C.M.P IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND
CONCILIATION ACT, PRAYING TO APPOINT AN INDEPENDENT AND
IMPARTIAL PERSON AS SOLE ARBITRATOR HAVING SOUND
KNOWLEDGE IN THE FIELD OF ENGINEERING AND CONTRACT TO
ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER AND
RESPONDENT IN RESPECT TO ESTABLISHMENT OF PROJECT WORK IN
TERMS OF CLAUSE 24.4 OF GCC AND 24.4 OF PCC WHICH FORMS AN
INTEGRAL PART OF THE CONTRACT AGREEMENT DATED 17/12/2014
PRODUCED AT ANNEXURE-A, B AND C ENTERED INTO BETWEEN THE
PETITIONER AND THE RESPONDENT IN THE INTEREST OF JUSTICE.
IN CMP No.338/2023:
BETWEEN:
M/S. SPML INFRA LIMITED
(FORMERLY SUBHASH PROJECTS
AND MARKETING LTD)
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT No. F-27/12
OKHLA INDUSTRIAL AREA
PHASE-II, NEW DELHI - 110 026.
AND
REGIONAL OFFICE AT
# 27, MANASU, 1ST FLOOR
MALLIKARJUNA TEMPLE STREET
PUTTANNA ROAD, BASAVANAGUDI
BENGALURU - 560 004.
DULY REPRESENTED BY ITS AUTORIZED REPRESENTATIVE
SRI.O. VISHVESWARAIAH, VICE PRESIDENT(PROJECTS).
...PETITIONER
(BY SRI S SRIRANGA, SENIOR COUNSEL FOR
SRI SHARATH CHANDRA J, ADVOCATE)
-3-
NC: 2024:KHC:8836
CMP No. 337 of 2023
C/W CMP No. 338 of 2023
CMP No. 339 of 2023
CMP No. 340 of 2023
CMP No. 341 of 2023
CMP No. 342 of 2023
AND:
THE MUNICIPAL COMMISSIONER
CITY MUNICIPAL COUNCIL
HAVERI - 581 110.
...RESPONDENT
(BY SRI PRASHANTH KUMAR D, ADVOCATE)
THIS C.M.P IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND
CONCILIATION ACT, PRAYING TO APPOINT AN INDEPENDENT AND
IMPARTIAL PERSON AS SOLE ARBITRATOR HAVING SOUND
KNOWLEDGE IN THE FIELD OF ENGINEERING AND CONTRACT TO
ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER AND
RESPONDENT IN RESPECT TO ESTABLISHMENT OF PROJECT WORK IN
TERMS OF CLAUSE 24.4 OF GCC AND 24.4 OF PCC WHICH FORMS AN
INTEGRAL PART OF THE CONTRACT AGREEMENT DATED 24/12/2014
PRODUCED AT ANNEXURE-A, B AND C ENTERED INTO BETWEEN THE
PETITIONER AND THE RESPONDENT IN THE INTEREST OF JUSTICE.
IN CMP No.339/2023:
BETWEEN:
M/S. SPML INFRA LIMITED
(FORMERLY SUBHASH PROJECTS
AND MARKETING LTD)
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT No. F-27/12
OKHLA INDUSTRIAL AREA
PHASE-II, NEW DELHI - 110 026.
AND REGIONAL OFFICE AT
# 27, MANASU, 1ST FLOOR
MALLIKARJUNA TEMPLE STREET
PUTTANNA ROAD, BASAVANAGUDI
BENGALURU - 560 004.
DULY REPRESENTED BY ITS AUTORIZED REPRESENTATIVE
SRI.O. VISHVESWARAIAH, VICE PRESIDENT(PROJECTS).
...PETITIONER
(BY SRI S SRIRANGA, SENIOR COUNSEL FOR
SRI SHARATH CHANDRA J, ADVOCATE)
-4-
NC: 2024:KHC:8836
CMP No. 337 of 2023
C/W CMP No. 338 of 2023
CMP No. 339 of 2023
CMP No. 340 of 2023
CMP No. 341 of 2023
CMP No. 342 of 2023
AND:
THE MUNICIPAL COMMISSIONER
CITY MUNICIPAL COUNCIL
NEAR VEGETABLE MARKET
HOSAPETE - 583 201.
...RESPONDENT
(BY SRI PRASHANTH KUMAR D, ADVOCATE)
THIS C.M.P IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND
CONCILIATION ACT, PRAYING TO APPOINT AN INDEPENDENT AND
IMPARTIAL PERSON AS SOLE ARBITRATOR HAVING SOUND
KNOWLEDGE IN THE FIELD OF ENGINEERING AND CONTRACT TO
ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER AND
RESPONDENT IN RESPECT TO ESTABLISHMENT OF PROJECT WORK IN
TERMS OF CLAUSE 24.4 OF GCC AND 24.4 OF PCC WHICH FORMS AN
INTEGRAL PART OF THE CONTRACT AGREEMENT DATED 05/02/2015
PRODUCED AT ANNEXURE-A, B AND C ENTERED INTO BETWEEN THE
PETITIONER AND THE RESPONDENT IN THE INTEREST OF JUSTICE.
IN CMP No.340/2023:
BETWEEN:
M/S. SPML INFRA LIMITED
(FORMERLY SUBHASH PROJECTS
AND MARKETING LTD)
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT No. F-27/12
OKHLA INDUSTRIAL AREA
PHASE-II, NEW DELHI - 110 026.
AND REGIONAL OFFICE AT
# 27, MANASU, 1ST FLOOR
MALLIKARJUNA TEMPLE STREET
PUTTANNA ROAD, BASAVANAGUDI
BENGALURU - 560 004.
DULY REPRESENTED BY ITS AUTORIZED REPRESENTATIVE
SRI.O. VISHVESWARAIAH, VICE PRESIDENT.
...PETITIONER
(BY SRI S SRIRANGA, SENIOR COUNSEL FOR
SRI SHARATH CHANDRA J, ADVOCATE)
AND:
-5-
NC: 2024:KHC:8836
CMP No. 337 of 2023
C/W CMP No. 338 of 2023
CMP No. 339 of 2023
CMP No. 340 of 2023
CMP No. 341 of 2023
CMP No. 342 of 2023
THE COMMISSIONER
BALLARI CITY CORPORATION
GUDIGICHENNAPPA CIRCLE, OPP ROYAL CIRCLE
BALLARI - 583 101.
...RESPONDENT
(BY SRI PRASHANTH KUMAR D, ADVOCATE)
THIS CMP IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND
CONCILIATION ACT, PRAYING TO APPOINT AN INDEPENDENT AND
IMPARTIAL PERSON AS SOLE ARBITRATOR HAVING SOUND
KNOWLEDGE IN THE FIELD OF ENGINEERING AND CONTRACT TO
ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER AND
RESPONDENT IN RESPECT TO ESTABLISHMENT OF PROJECT WORK IN
TERMS OF CLAUSE 24.4 OF GCC AND 24.4 OF PCC WHICH FORMS AN
INTEGRAL PART OF THE CONTRACT AGREEMENT DATED 31/01/2015
PRODUCED AT ANNEXURE-A, B AND C ENTERED INTO BETWEEN THE
PETITIONER AND THE RESPONDENT IN THE INTEREST OF JUSTICE.
IN CMP No.341/2023:
BETWEEN:
M/S. SPML INFRA LIMITED
(FORMERLY SUBHASH PROJECTS
AND MARKETING LTD)
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT No. F-27/12
OKHLA INDUSTRIAL AREA
PHASE-II, NEW DELHI - 110 026.
AND REGIONAL OFFICE AT
# 27, MANASU, 1ST FLOOR
MALLIKARJUNA TEMPLE STREET
PUTTANNA ROAD, BASAVANAGUDI
BENGALURU - 560 004.
DULY REPRESENTED BY ITS AUTORIZED REPRESENTATIVE
SRI.O. VISHVESWARAIAH, VICE PRESIDENT(PROJECTS).
...PETITIONER
(BY SRI S SRIRANGA, SENIOR COUNSEL FOR
SRI SHARATH CHANDRA J, ADVOCATE)
AND:
-6-
NC: 2024:KHC:8836
CMP No. 337 of 2023
C/W CMP No. 338 of 2023
CMP No. 339 of 2023
CMP No. 340 of 2023
CMP No. 341 of 2023
CMP No. 342 of 2023
THE COMMISSIONER
CTIY MUNICIPAL COUNCIL
NEAR HEAD POST OFFICE
RAICHUR - 584 101.
...RESPONDENT
(BY SRI PRASHANTH KUMAR D, ADVOCATE)
THIS CMP IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND
CONCILIATION ACT, PRAYING TO APPOINT AN INDEPENDENT AND
IMPARTIAL PERSON AS SOLE ARBITRATOR HAVING SOUND
KNOWLEDGE IN THE FIELD OF ENGINEERING AND CONTRACT TO
ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER AND
RESPONDENT IN RESPECT TO ESTABLISHMENT OF PROJECT WORK IN
TERMS OF CLAUSE 24.4 OF GCC AND 24.4 OF PCC WHICH FORMS AN
INTEGRAL PART OF THE CONTRACT AGREEMENT DATED 28/02/2015
PRODUCED AT ANNEXURE-A, B AND C ENTERED INTO BETWEEN THE
PETITIONER AND THE RESPONDENT IN THE INTEREST OF JUSTICE.
IN CMP No.342/2023:
BETWEEN:
M/S. SPML INFRA LIMITED
(FORMERLY SUBHASH PROJECTS
AND MARKETING LTD)
A PUBLIC LIMITED COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT No. F-27/12
OKHLA INDUSTRIAL AREA
PHASE-II, NEW DELHI - 110 026.
AND
REGIONAL OFFICE AT
# 27, MANASU, 1ST FLOOR
MALLIKARJUNA TEMPLE STREET
PUTTANNA ROAD, BASAVANAGUDI
BENGALURU - 560 004.
DULY REPRESENTED BY ITS AUTORIZED REPRESENTATIVE
SRI.O. VISHVESWARAIAH, VICE PRESIDENT (PROJECTS)
...PETITIONER
(BY SRI S SRIRANGA, SENIOR COUNSEL FOR
SRI SHARATH CHANDRA J, ADVOCATE)
-7-
NC: 2024:KHC:8836
CMP No. 337 of 2023
C/W CMP No. 338 of 2023
CMP No. 339 of 2023
CMP No. 340 of 2023
CMP No. 341 of 2023
CMP No. 342 of 2023
AND:
THE MUNICIPAL COMMISSIONER
CTIY MUNICIPAL COUNCIL
GANDHI CIRCLE
GADAG - 582 101.
...RESPONDENT
(BY SRI PRASHANTH KUMAR D, ADVOCATE)
THIS CMP IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND
CONCILIATION ACT, PRAYING TO APPOINT AN INDEPENDENT AND
IMPARTIAL PERSON AS SOLE ARBITRATOR HAVING SOUND
KNOWLEDGE IN THE FIELD OF ENGINEERING AND CONTRACT TO
ADJUDICATE THE DISPUTE BETWEEN THE PETITIONER AND
RESPONDENT IN RESPECT TO ESTABLISHMENT OF PROJECT WORK IN
TERMS OF CLAUSE 24.4 OF GCC AND 24.4 OF PCC WHICH FORMS AN
INTEGRAL PART OF THE CONTRACT AGREEMENT DATED 24/12/2014
PRODUCED AT ANNEXURE-A, B AND C ENTERED INTO BETWEEN THE
PETITIONER AND THE RESPONDENT IN THE INTEREST OF JUSTICE.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
In CMP No.337/2023, the petitioner seeks for the following reliefs;
"Therefore, it is prayed that this Hon'ble Court may be pleased to appoint an independent and impartial person as Sole Arbitrator having sound knowledge in the field of Engineering and Contract to adjudicate the dispute between the Petitioner and Respondent in respect to establishment of Project work in terms of Clause 24.4 of GCC and 24.4 of PCC which forms an integral part of the Contract agreement dated 17.12.2014 produced at Annexure-A, B and C -8- NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 entered into between the Petitioner and the Respondent in the interest of justice."
In CMP No.338/2023, the petitioner seeks for the following reliefs;
"Therefore, it is prayed that this Hon'ble Court may be pleased to appoint an independent and impartial person as Sole Arbitrator having sound knowledge in the field of Engineering and Contract to adjudicate the dispute between the Petitioner and Respondent in respect to establishment of Project work in terms of Clause 24.4 of GCC and 24.4 of PCC which forms an integral part of the Contract agreement dated 24.12.2014 produced at Annexure-A, B and C entered into between the Petitioner and the Respondent in the interest of justice."
In CMP No.339/2023, the petitioner seeks for the following reliefs;
"Therefore, it is prayed that this Hon'ble Court may be pleased to appoint an independent and impartial person as Sole Arbitrator having sound knowledge in the field of Engineering and Contract to adjudicate the dispute between the Petitioner and Respondent in respect to establishment of Project work in terms of Clause 24.4 of GCC and 24.4 of PCC which forms an integral part of the Contract agreement dated 05.02.2015 produced at -9- NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 Annexure-A, B and C entered into between the Petitioner and the Respondent in the interest of justice."
In CMP No.340/2023, the petitioner seeks for the following reliefs;
"Therefore, it is prayed that this Hon'ble Court may be pleased to appoint an independent and impartial person as Sole Arbitrator having sound knowledge in the field of Engineering and Contract to adjudicate the dispute between the Petitioner and Respondent in respect to establishment of Project work in terms of Clause 24.4 of GCC and 24.4 of PCC which forms an integral part of the Contract agreement dated 31.01.2015 produced at Annexure-A, B and C entered into between the Petitioner and the Respondent in the interest of justice."
In CMP No.341/2023, the petitioner seeks for the following reliefs;
"Therefore, it is prayed that this Hon'ble Court may be pleased to appoint an independent and impartial person as Sole Arbitrator having sound knowledge in the field of Engineering and Contract to adjudicate the dispute between the Petitioner and Respondent in respect to establishment of Project work in terms of Clause 24.4 of GCC and 24.4 of PCC which forms an integral part of the Contract agreement dated 28.02.2015 produced at
- 10 -
NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 Annexure-A, B and C entered into between the Petitioner and the Respondent in the interest of justice."
In CMP No.342/2023, the petitioner seeks for the following reliefs;
"Therefore, it is prayed that this Hon'ble Court may be pleased to appoint an independent and impartial person as Sole Arbitrator having sound knowledge in the field of Engineering and Contract to adjudicate the dispute between the Petitioner and Respondent in respect to establishment of Project work in terms of Clause 24.4 of GCC and 24.4 of PCC which forms an integral part of the Contract agreement dated 24.02.2014 produced at Annexure-A, B and C entered into between the Petitioner and the Respondent in the interest of justice."
2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.
3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner, on instructions, submit that though several contentions have been urged by the petitioner in the present petitions for the purpose of seeking appointment of fresh / new Arbitrator, in the light of the specific liberty reserved by the
- 11 -
NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 Arbitral Tribunal in its order dated 19.02.2021, whereby the Arbitration proceedings were closed pursuant to the settlement agreement dated 09.02.2021 entered into between the parties and the petitioner was reserved liberty to revive the proceedings in the event, terms of the settlement did not work out, the present petition may be disposed of reviving the earlier arbitration proceedings before the very same Arbitral Tribunal comprising of the very same sole Arbitrator Sri.Ajith J. Gunjal, Former Judge of this Court.
4. Per contra, learned counsel for the respondent submits that in view of initiation of parallel proceedings in T.S.No.1187/2023, T.S.No.1230/2023, T.S.No.1228/2023, T.S.No.1241/2023, T.S.No.1240/2023 and T.S.No.1229/2023 by the petitioner against the respondent before the City Civil Court, Calcutta, the present petitions are not maintainable and the question of seeking revival of the arbitration proceedings does not arise. It is submitted that so also, CMP No.339/2023 and CMP No.342/2023 are liable to be dismissed.
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NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023
5. By way of reply, learned Senior counsel for the petitioner submits that if the earlier arbitration proceedings are directed to be revived and CMP 339/2023 and CMP 342/2023 are also referred to the Arbitral Tribunal, the petitioner would withdraw all the 6 suits in T.S.No.1230/2023 & connected matters pending before the City Civil Court, Calcutta, by reserving liberty in favour of the parties to urge their respective contentions before the Arbitral Tribunal. It is also submitted that since the petitioner has the benefit of an interim order in the said suits before the City Civil Court, Calcutta, liberty may be reserved in favour of the petitioner to file an appropriate applications before the Arbitral Tribunal under Section 17 of the Arbitration and Conciliation Act, 1996, which may be disposed of and the interim order passed by the City Civil Court, Calcutta may be directed to be continued till disposal of the said applications.
6. By way of rejoinder, learned counsel for the respondent submits that he has no objection for the aforesaid directions to be issued in the present petitions. He however, submits that the respondent would file objections to the
- 13 -
NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 applications to be filed by the petitioner under Section 17 of the Arbitration and Conciliation Act and liberty may be reserved in favour of the respondent to file such other appropriate application(s) before the Arbitral Tribunal.
7. The material on record indicates that in the insofar as the subject matter in CMP Nos. 337/2023, 338/2023, 340/2023 and 341/2023 are concerned, the parties entered into a settlement agreement which was produced by the parties in the previous arbitration proceedings, wherein on 19.02.2021, the Arbitral Tribunal closed the proceedings by directing as under;
"Sri Sharath Chandra.J and Sri V.K.Sathyanarayana, learned advocates for the claimant with Sri O.Vishveswaraiah, Vice . President (Project) of the claimant are present.
Ms.Aishwarya Rai, Legal Assistant - KUIDFC representing the Respondent is present.
The Claimant has filed claim petition seeking recovery of certain amounts for the work done for the benefit of the Respondent.
Suffice it to note that the matter was referred to the Arbitration Centre by appointing the Sole Arbitrator by Hon'ble High Court of Karnataka.
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NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 In terms of the reference the Claimant has filed claim petition. The Respondent was served with the notice of this proceedings.
During this interregnum it is noticed that parties have settled the dispute interse between them.
The Claimant has filed an application seeking withdrawal of the arbitration dispute. The memo would read as under:
That subsequent to the filing of the claim statement in the above arbitration case, the Claimant and the Respondents have decided to amicably settle all the disputes between them which are subject matter of the above Arbitration case. Accordingly the Claimant and the Respondents after conducting several meetings and discussions have arrived at mutual agreement to settle all the disputes between them and in view of the mutually agreed settlement arrived between the Claimant and the Respondents, the above arbitration case does not survive for consideration. Hence the Claimant is filing the present application seeking for withdrawal of the above arbitration case as settled outside the Court.
Likewise, the Respondent has also filed a memo indicating that the matter interse between the Claimant and the Respondent is settled and they have also enclosed a
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NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 settlement agreement dated 28.02.2020. The said settlement agreement is signed by the Vice President of the Claimant as well as Municipal Commissioner of the Respondent.
Since the dispute interse between the parties is settled pursuant to the settlement agreement the present proceedings stands terminated.
It is noticed that neither the Claimant nor the Respondent have deposited their share of Arbitrator's fee or the miscellaneous expenses. Having regard to the fact that the proceedings are terminated after filing of the claim petition and the affidavit by way of evidence the Claimant and the Respondent are directed to deposit a sum of Rs. 75,000/- each towards Arbitrator's fee even though the office has calculated Rs. 2,37,974/- as the share of each party. The Claimant as well as the Respondent shall deposit administrative and miscellaneous expenses as applicable. The Arbitrator's fee, administrative and miscellaneous expenses shall be deposited within a period of 4 weeks.
Mr.Sharath Chandra, learned counsel for the Claimant submits that in the event the terms of the settlement agreement do not work out, liberty may be reserved to the Claimant to revive the proceedings in accordance with law.
Proceedings stand terminated.
Copies of today's proceedings be supplied to both counsel."
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NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023
8. As can be seen from the aforesaid order passed by the Arbitral Tribunal, liberty is reserved in favour of the petitioner to seek revival of the proceedings in the event, the terms of settlement do not work out. Under these circumstances, in the light of the liberty reserved in favour of the petitioner - claimant, pursuant to the submission made by the learned counsel in the previous Arbitration Proceedings, I am of the considered opinion that since no award was passed by the Arbitral Tribunal, which merely recorded the settlement agreement executed earlier on 09.02.2021 while disposing of the Arbitration Proceedings on 19.02.2021, the petitioner would be entitled to revive / restore the Arbitration proceedings by referring the same back to the very same Arbitral Tribunal comprising of the very same sole Arbitrator.
9. Insofar as the contention urged on behalf of the respondent that having instituted suits against the respondent in T.S.No.1187/2023 & connected matters before the City Civil Court, Calcutta, the petitioner is not entitled to seek revival of the Arbitration Proceedings is concerned, in view of the undertaking given on behalf of the petitioner that he would withdraw the said
- 17 -
NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 suits and agitate all claims before the Arbitral Tribunal upon revival / restoration of the arbitration proceedings, the petitioner is to be directed to withdraw the said suits and arbitration proceedings deserve to be restored / revived and referred to the very same Arbitral Tribunal by leaving open all contentions to be decided by the Arbitral Tribunal.
10. Insofar as CMP Nos.339/2023 and 342/3023, which did not relate to any earlier arbitration proceedings, since even these petitions are between the petitioner and the respondent herein, albeit in respect of different projects at Hospete and Gadag- Betageri, since common / identical questions of law and fact arise for consideration in these petitions also, the same also deserve to be referred to the very same Arbitral Tribunal.
11. Further, in view of the submissions made by both sides referred to supra, without prejudice to the rights and contentions of the parties, I deem it just and proper to make certain interim arrangements as regards the interim orders passed in favour of the petitioner by the City Civil Court, Calcutta.
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NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023
12. In the result, the following:-
ORDER
(i) All the petitions in CMP Nos. 337/2023, 338/2023, 339/2023, 340/2023, 341/2023 and 342/2023 are hereby disposed of.
(ii) The petitioner is directed to withdraw all the six suits in T.S.No.1187/2023, T.S.No.1230/2023, T.S.No.1228/2023, T.S.No.1241/2023, T.S.No.1240/2023 and T.S.No.1229/2023 filed by the petitioner against the respondent before the City Civil Court, Calcutta, on or before 15.03.2024.
(iii) Arbitration proceedings in relation to CMP Nos. 337/2023, 338/2023, 340/2023 and 341/2023 are revived / restored to the file of the Arbitration and Conciliation Centre (Domestic and International, Bengaluru) before the Arbitral Tribunal comprising of the sole Arbitrator Shri.Ajit J. Gunjal, Former Judge of this Court.
(iv) CMP Nos. 339/2023 and 342/2023 are also referred to the aforesaid sole Arbitrator Shri.Ajit J. Gunjal, Former Judge of this Court for disposal along with the other matters.
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NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023
(v) The Arbitral Tribunal is requested to post all the six matters and conduct the 1st sitting of the arbitration proceedings on 18.03.2024.
(vi) Liberty is reserved in favour of the petitioner to file applications under Section 17 of the Arbitration and Conciliation Act; if the petitioner intends to do so, it shall file the applications on 18.03.2024 by serving a copy of the same in advance on the respondent.
(vii) Liberty is reserved in favour of the respondent to file objections to the aforesaid applications to be filed by the petitioner and the Arbitral Tribunal is requested to pass the appropriate orders on the said applications within a period of one month from 18.03.2024.
(viii) It is further directed that till disposal of the applications to be filed by the petitioner under Section 17 of the Arbitration and Conciliation Act, 1996, the interim orders passed in T.S.No.1187/2023, T.S.No.1230/2023, T.S.No.1228/2023, T.S.No.1241/2023, T.S.No.1240/2023 and T.S.No.1229/2023 by
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NC: 2024:KHC:8836 CMP No. 337 of 2023 C/W CMP No. 338 of 2023 CMP No. 339 of 2023 CMP No. 340 of 2023 CMP No. 341 of 2023 CMP No. 342 of 2023 the City Civil Court, Calcutta shall continue to remain in force and operate between the parties.
(ix) It is needless to state that the Arbitral Tribunal shall consider and pass the appropriate orders on the applications without being influenced by the findings or the observations recorded in the proceedings, orders etc., by the Calcutta High Court or the findings or observations, if any, recorded in the present order.
(x) Liberty is also reserved in favour of both parties to file such other applications before the Arbitral Tribunal which shall consider and pass appropriate orders in accordance with law.
(xi) All rival contentions between the parties on all aspects including maintainability, arbitrability, jurisdiction, limitation etc., are kept / left open to be decided by the Arbitral Tribunal and no opinion is expressed on the same.
SD/-
JUDGE GH/SRL