Kerala High Court
P.D.Joseph vs The Garrison Engineer (Fk) on 11 August, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
AR NO. 40 OF 2020
APPLICANT:
P.D.JOSEPH, AGED 50 YEARS,
PROPRIETOR, M/S. LIJU WORKS AND M/S. LIJU ENGINEERING
WORKS XIV/1533 B, CHULLIKKAL, ERNAKULAM, KOCHI 682 005.
BY ADVS.
G.HARIHARAN
SRI.PRAVEEN.H.
SMT.K.S.SMITHA
SMT.T.T.SHANIBA
SRI.M.V.VIPINDAS
SHRI.AMAL DEV D
RESPONDENTS:
1 THE GARRISON ENGINEER (FK),
INS DHRONACHARYA, KOCHI-682001.
2 THE ASSISTANT GARRISON ENGINEER (CONTRACTS),
INS DHRONACHARYA, KOCHI-682001.
BY ADV. SMT.KRISHNA S., CGC
SRI.P.VIJAYAKUMAR, ASGI
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON
11.08.2021, ALONG WITH AR.63/2020, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
AR NOS. 40 & 63/2020
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA, 1943
AR NO. 63 OF 2020
APPLICANT:
P.D.JOSEPH, AGED 50 YEARS,
PROPRIETOR, M/S. LIJU WORKS AND M/S. LIJU
ENGINEERING WORKS XIV/1533B, CHULLIKKAL,
ERNAKULAM, KOCHI - 682 005.
BY ADVS.
G.HARIHARAN
SRI.PRAVEEN.H.
SMT.K.S.SMITHA
SMT.T.T.SHANIBA
SRI.M.V.VIPINDAS
SHRI.AMAL DEV D
SMT.AKHILA P.
RESPONDENTS:
1 THE GARRISSON ENGINEER (FK),
INS DHRONACHARYA, KOCHI - 682 001.
2 THE ASSISTANT GARRISON ENGINEER (CONTRACTS),
INS DHRONACHARYA, KOCHI - 682 001.
BY ADV.SMT.S.KRISHNA , CGC,
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION
ON 11.08.2021, ALONG WITH AR.40/2020, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
AR NOS. 40 & 63/2020
-3-
ORDER
[AR Nos.40/2020, 63/2020] These two Arbitration Requests are being considered together on account of the fact that they relate to the same agreement between the parties.
2. The applicant, who stated to have entered into Annexure A1 agreements (in both these Arbitration Requests) with the respondents, alleges that several disputes have now arisen between them, touching upon its terms, thus constraining him to address the respondents through Annexure A2 letter (in both cases), to seek redressal of same, through the resolution mechanism provided under Clause 70 of the agreements, namely under the aegis of a sole Arbitrator.
3. The applicant asserts that the works under the contract have been completed by him AR NOS. 40 & 63/2020 -4- satisfactorily, but that, in spite of the same, his bills had not been properly honoured by the respondents, and thus that he has no other option but to seek resolution in the manner above. The applicant, therefore, prays that both these Arbitration Requests be ordered and a suitable Arbitrator be appointed by this Court, who can thereupon enter reference to adjudicate and resolve the disputes between the parties.
4. The submissions of the applicant, as made by his learned counsel - Sri.Praveen Hariharan, was countered by Smt.S.Krishna - learned counsel for the respondents, asserting that these Arbitration Requests are premature because the works in question have not been completed by the applicant until now. She added that the attempt of the applicant is to seek arbitration of 'disputes', which have not yet arisen and to thus escape from his obligations under the agreements. AR NOS. 40 & 63/2020 -5- work.
5. Smt.S.Krishna then supplemented her afore submissions, by saying that all the bills of the applicant pending with the respondents, have already been dealt with and suitable action thereon taken; and that no other bills are pending with them, which would render it limpid that there are no disputes between the parties, referable to an Arbitrator as per the terms of the agreements.
6. In reply, Sri.Praveen Hariharan submitted that, as is evident from Annexure A2 notices issued by his client in both these cases to the respondents, he has taken the specific stand that the works have been completed, but that large amounts of payments under the final bills are still pending. He thus argued that the question whether the works as per the agreements have been completed itself is an issue which will have to be decided by the Arbitrator; and thus reiteratingly AR NOS. 40 & 63/2020 -6- prayed that these Arbitration Requests be allowed.
7. When I consider the afore rival submissions, it is clear that the applicant vehemently asserts that several disputes are raised with respect to the terms of the agreements with the respondents. The defence taken by the respondents, however, is that the works under the agreements have not been yet completed.
8. Pertinently, even this is contested by the applicant, who says that he has made it clear to the respondents that works have been completed and the final bills thus submitted.
I am, therefore, of the firm view that the works under the agreements had been completed by the applicant itself is an issue which will have to be decided by the learned Arbitrator; and presumably, being aware of the mind of this Court, Smt.S.Krishna submitted that if these issues are left open, then her clients would not stand in the AR NOS. 40 & 63/2020 -7- way of a suitable Arbitrator being appointed.
In the afore circumstances and in summation, I allow these Arbitration Requests as under:
(a) I nominate Sri.Babu Thomas K., Metro Plaza, Market Road, Kochi - 682 019, as the sole Arbitrator to adjudicate and resolve the disputes and differences between the parties to these cases, arising from and relating to Annexure A1 agreements in both of them.
(b) The Registry is directed to communicate a copy of this order to the learned Arbitrator within a period of one week from today and to obtain a Statement of Disclosure from him under Section 11(8), read with Section 12(1) of the Arbitration and Conciliation Act, 1996.
(c) Once the Disclosure Statement is obtained from the learned Arbitrator, the Registry shall release the certified copy of this order, with a copy of the said statement appended to it, AR NOS. 40 & 63/2020 -8- retaining the original of the same on the files of this case.
(d)The fees of the Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996.
(e) In order to enable the Arbitrator to commence the proceedings without delay, I direct the parties to mark appearance before him at 11 A.M. on 24.09.2021.
Sd/-
DEVAN RAMACHANDRAN JUDGE akv AR NOS. 40 & 63/2020 -9- APPENDIX OF AR 63/2020 APPLICANT'S ANNEXURES:
ANNEXURE A1 TRUE COPY OF GENERAL CONDITIONS OF CONTRACT I.A.F.W 2249.
ANNEXURE A2 TRUE COPY OF NOTICE DATED 16/12/2019 ISSUED ON BEHALF OF THE APPLICANT TO THE 2ND RESPONDENT.
AR NOS. 40 & 63/2020 -10- APPENDIX OF AR 40/2020 APPLICANT'S ANNEXURES:
ANNEXURE A1 TRUE COPY OF THE GENERAL CONDITIONS OF CONTRACT I.A.F.W 2249.
ANNEXURE A2 TRUE COPY OF THE NOTICE DATED 16/12/2019 ISSUED ON BEHALF OF THE APPLICANT TO THE 2ND RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE REPLY TO A2 ISSUED BY THE 2ND RESPONDENT TO THE APPLICANT.