Kerala High Court
Unknown vs Appellant/ on 6 October, 2017
Author: Antony Dominic
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940
WA.No. 16 of 2018 IN WPC. 28514/2017
AGAINST THE JUDGMENT IN WP(C)28514/2017 of HIGH COURT OF KERALA DATED 06-10-2017
APPELLANT/RESPONDENTS 1,2 & 4
1 THE EXECUTIVE ENGINEER, CENTRAL PUBLIC WORKS DEPARTMENT
OFFICE OF THE EXECUTIVE ENGINEER, CALICUT PROJECT DIVISION,
F-TYPE QUARTERS, NO.5B, NIT CAMPUS, CALICUT-673 601.
2 MINISTRY OF HOUSING & URBAN AFFAIRS,
NIRMAN BHAVAN, NEW DELHI-110 108, REPRESENTED BY ITS SECRETARY.
3 MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
DEPARTMENT OF HIGHER EDUCATION, 128-C, SHASTRI BHAVAN,
NEW DELHI-110 115, REPRESENTED BY SECRETARY.
BY ADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE
RESPONDENTS/PETITIONER AND RESPONDENTS 3,5 TO 8::
1. ENGINEERING PROJECTS (INDIA) LTD.
(A GOVERNMENT OF INDIA ENTERPRISES) 3D, EC CHAMBERS, 92 GN
CHETTY ROAD, T.NAGAR, CHENNAI-600 017, REPRESENTED BY ITS
ADDL. GENERAL MANAGER.
2. NATIONAL INSTITUTE OF TECHNOLOGY,
NIT CAMPUS P.O., CALICUT-673 601, REPRESENTED BY DIRECTOR.
3. INDUSIND BANK,LAJPAT NAGAR BRANCH, REVISSANCE HOUSE, 1ST RING ROAD,
TRADE SERVICES DEPARTMENT 1ST FLOOR, LAJPAT NAGAR-IV,
NEW DELHI-110 024
4. INDUSIND BANK,NUNGAMBAKAM BRANCH, #3 VILLAGE ROAD, CHENNAI-600 034.
5. INDIAN OVERSEAS BANK, PALIKA BHAVAN,R.K.PURAM,
SECTOR-13, NEW DELHI-110 066, REPRESENTED BY ITS CHIEF MANGER.
6. DEPARTMENT OF PUBLIC ENTERPRISES,NO.#20, NEW MOTI BAGH,
NEW DELHI-110 023, REPRESENTED BY ITS SECRETARY.
R4 BY ADV. SRI.A.KUMAR
R4 BY ADV. SRI.P.J.ANILKUMAR
R4 BY ADV. SMTG.MINI(1748)
R4 BY ADV. SRI.P.S.SREE PRASAD
R2 BY ADV. SRI.SHYAM PADMAN
R2 BY ADV. SRI.C.M.ANDREWS
R2 BY ADV. SRI.P.T.MOHANKUMAR
R2 BY ADV. SMT.BOBY M.SEKHAR
R2 BY ADV. SMT.ANITYA ANNIE MATHEW
R2 BY ADV. SMT.NEETHU RAVIKUMAR
R2 BY ADV. SMT.REVATHY P. MANOHARAN
R2 BY ADV. KUM.LAYA MARY JOSEPH
R6 BY ADV. SMT.C.G.PREETHA, CGC
R1 BY ADV. SRI.P.SHANES METHAR, SC, ENGINEERING PROJECTS (INDIA) LTD.
R BY SRI.SUNIL SANKAR.P.
R BY SRI.P.SHANES METHAR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-05-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC, C.J. & DAMA SESHADRI NAIDU, J.
---------------------------------------
Writ Appeal No.16 of 2018
---------------------------------------
Dated this the 23rd day of May, 2018
JUDGMENT
Antony Dominic, C.J.
Ext.P1 is the agreement between the first respondent and the first appellant. The agreement, inter alia, provided for reference of disputes by Arbitration in terms of the provisions contained in Clause 25 of the agreement. However, the first respondent sought arbitration in terms of the provisions contained in Ext.P11 order issued by the Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises, Government of India, creating Permanent Machinery of Arbitrators (PMA) for resolving disputes that arise between organisations such as the first respondent and the first appellant. It was for that purpose, the first respondent filed the writ petition before this court, which was allowed by the learned Single Judge overruling the objection of the appellants that arbitration can Writ Appeal No.16 of 2018 : 2 :
only be in terms of clause 25 of the agreement. It is this judgment of the learned Single Judge, which is impugned before us.
2. We heard the Assistant Solicitor General appearing for the appellants and also the learned counsel appearing for the respondents.
3. The short question to be considered is whether the conclusion of the learned Single Judge that the first respondent was entitled to have the arbitration of the disputes between themselves and the first appellant adjudicated by a Permanent Machinery of Arbitrators (PMA) created under Ext.P11 is illegal or not.
4. Having considered the rival submissions before us, we find that though Ext.P1 agreement was entered into between the parties on 26.9.2011, and that agreement provided for an arbitration clause, subsequently, the Government of India have issued Ext.P11 creating Permanent Machinery of Arbitrators Writ Appeal No.16 of 2018 : 3 :
which binds the first appellant and the first respondent. Ext.P11 provides for mandatory reference of disputes to Arbitration by PMA whenever disputes arise between entities such as the first appellant and the first respondent. In the context of the contention raised by the appellants irrespective of Ext.P11, the parties are governed by contractual provision of arbitration, it is relevant to refer to the provision of Ext.P11 which, inter alia, provides that if any arbitrator has already been appointed in any dispute that should immediately be cancelled and also requiring entities such as the first respondent and the first appellant to ensure inclusion of Arbitration Clause in favour of Permanent Machinery of Arbitrators (PMA) in all existing future contracts/supply orders. This reveals the intention of the Government of India that even with regard to the existing entities, the arbitration should be governed by the terms of Ext.P11.Writ Appeal No.16 of 2018
: 4 :
5. If that be so, the conclusion of the learned Single Judge that the first respondent was entitled to have the arbitration by PMA has to be upheld. We also take note of the admitted fact that pursuant to the judgment of this court, arbitration by Permanent Machinery of Arbitrators (PMA) has already proceeded and what remains is only passing of orders. We find that the appellants have not made out a case for interference.
Appeal fails and it is dismissed.
sd/-
ANTONY DOMINIC, CHIEF JUSTICE sd/-
DAMA SESHADRI NAIDU, JUDGE jes