Kerala High Court
M/S.Eva Project Ventures Pvt. Ltd vs Mr.E.R.Ajayan @ Edassery Ragavan ... on 31 January, 2025
AR No.248 of 2024 1
2025:KER:8549
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 31ST DAY OF JANUARY 2025 / 11TH MAGHA, 1946
AR NO. 248 OF 2024
PETITIONER:
M/S.EVA PROJECT VENTURES PVT. LTD.
GROUND FLOOR, GALEELEE TOWERS, MULANTHURUTHY.P.O,
ERNAKIULAM, REPRESENTED BY ITS MANAGING DIRECTOR
K.S.PRASAD, PIN - 682314
BY ADVS.
VARGHESE P.CHACKO
DENNIS VARGHESE
RESPONDENTS
1 MR.E.R.AJAYAN @ EDASSERY RAGAVAN AJAYAN
AGED 53 YEARS
S/O.RAGAVAN EDASSERY, PERINGANAM, KOTHAPARAMBA, ALA
VILLAGE, KODUNGALLUR TALUK, THRISSUR, KERALA,
PIN - 680668
2 MRS.SEEMA AJAYAN
AGED 48 YEARS
W/O.AJAYAN EDASSERY , KOTHAPARAMBA, ALA VILLAGE,
KODUNGALLUR TALUK, THRISSUR, KERALA, PIN - 680668
BY ADVS.
K.J.MOHAMMED ANZAR
P.K.MINIMOLE(K/1604/1995)
A.RADHAKRISHNAN NAIR(K/354/2006)
BAPPU GALIB SALAM(K/001594/2021)
G.MOTILAL(K/000020/2022)
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION
ON 31.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
AR No.248 of 2024 2
2025:KER:8549
ORDER
Dated this the 31st day of January, 2025 Petitioner has filed this Arbitration Request invoking Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") to appoint an arbitrator to resolve the disputes that have arisen between them and the respondents.
2. Petitioner is a contractor/construction company. The respondents are the joint owners of an extent of land situated in Ala Village, Kodungallur Taluk, Thrissur Dist. An agreement dated 21.06.2023 produced as Annexure A1 was entered into between the petitioner and the respondents. The said agreement, termed as a 'turn-key agreement' involved documentation works, construction works etc. with respect to a tourism project for a 4- star resort by the name and style M/s. Edassery Lake Resort. Annexure A1 agreement at clause 9, envisaged arbitration. It reads as follows:
"9. In case any dispute or difference shall arise between the parties during the progress of the above said contractual obligations or after AR No.248 of 2024 3 2025:KER:8549 construction or abandonment of the work as to the meaning of construction of the project building or touching or relating either to the said project or works, or any other matter or thing arising directly or indirectly under this contract, then and in such an event, the same shall be referred to arbitration and the final decision of a single arbitrator to be mutually agreed between the parties who alone shall consider and determine the same and whose certificate or award shall be binding and conclusive upon both the parties and this clause shall be deemed an Arbitration clause as per the provision of the Arbitration Act. The venue of the arbitration shall be at Ernakulam. The cost of arbitration shall be shared equally by the parties."
3. The petitioner contends that though they carried out works for a total amount of Rs.1,11,40,000/- till 21.08.2024 as envisaged in Annexure A1, the respondents failed to pay the first installment amount of Rs.2 Crore and had paid only Rs.45,00,000/-. Hence, the petitioner claimed an amount of Rs.66,40,000/- from the respondents under Annexure A1. Since the respondents did not pay the amounts due and disputes arose between the parties, the petitioner issued Annexure A2 letter to AR No.248 of 2024 4 2025:KER:8549 the respondent inter alia invoking the arbitration clause and nominating an arbitrator from their part. The respondents replied thereto vide Annexure A3 but without making any reference to the invocation of the arbitration clause or to the nomination of an arbitrator. Thereafter, to preserve and protect the subject matter of arbitration, the petitioner moved Annexure A4 application before the III Additional District Judge, Thrissur, invoking Section 9 of the Act and an injunction (Annexure A5) was issued in the said application. An advocate commission had been taken out for local inspection in the said proceedings and the Commissioner submitted Annexure A6 report before the District Court. Objection filed by the respondents to the injunction application is produced as Annexure A7. Since the respondents had failed to respond to the invocation of the arbitration clause, this Arbitration Request is filed by the petitioner invoking Section 11 of the Act.
4. Heard Sri.Varghese P.Chacko, Advocate for the petitioner and Sri.K.J.Mohammed Anzar, Advocate for the respondents.
5. The respondents have not filed any counter affidavit. The AR No.248 of 2024 5 2025:KER:8549 relevant clause in Annexure A1 agreement specifically envisages dispute resolution by way of arbitration. Annexures A2 to A7 reveal the existence of disputes between the parties arising out of Annexure A1. The due invocation of the relevant arbitration clause is admitted by both sides. Thus the parties are ad idem regarding the existence of an arbitration clause and the invocation thereof.
6. In view of the above, I find it fit and appropriate to allow the Arbitration Request and to appoint a retired District Judge from the panel maintained by this Court as the Arbitrator.
Accordingly, this Arbitration Request stands allowed and it is ordered as follows :
(i) Sri.S.Jagadees, Retired District Judge, residing at Thoppil House, A.C.George Lane, Unichira, Thrikkakara P.O., Ernakulam, Pin-682021, is nominated as the sole Arbitrator to resolve the disputes that have arisen between the petitioner and the respondents under Annexure A1 agreement.
(ii) The learned Arbitrator may entertain all disputes/issues between the parties in connection AR No.248 of 2024 6 2025:KER:8549 with the said agreement, including questions of jurisdiction and limitation, if any, raised by the parties.
(iii) The Registry shall communicate a copy of this order to the learned Arbitrator within ten days from today and obtain a Statement of Disclosure from the learned Arbitrator as stipulated under Section 11(8) read with Section 12(1) of the Act.
(iv) Upon receipt of the Disclosure Statement, the Registry shall issue to the learned Arbitrator a certified copy of this order with a copy of the Disclosure Statement appended. The Original of the Disclosure Statement shall be retained in Court.
(v) The fees of the learned Arbitrator shall be governed by the Fourth Schedule of the Act.
Sd/-
SYAM KUMAR V. M. JUDGE smm AR No.248 of 2024 7 2025:KER:8549 APPENDIX OF AR 248/2024 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE AGREEMENT DATED 21.6.2023 ENTERED INTO BETWEEN THE PARTIES HEREIN.
Annexure A2 TRUE COPY OF SECTION 21 NOTICE DATED 21.8.2024 ISSUED BY THE APPELLANT Annexure A3 TRUE COPY OF THE REPLY DATED 28.I8.2024 ISSUED BY THE RESPONDENTS TO ANNEXURE-A2 NOTICE.
Annexure A4 TRUE COPY OF THE SECTION 9 PETITION DATED 21.9.2024 AS M.A.(ARB)NO.97/2024 FILED BY THE PETITIONER BEFORE THE III ADDL.
DISTRICT JUDGE, THRISSUR.
Annexure A5 TRUE COPY OF THE INJUNCTION PETITION FILED BY THE PETITIONER AS I.A.NO.3/2024 IN M.A.(ARB)NO.97/2024 BEFORE THE III ADDL. DISTRICT JUDGE, THRISSUR.
Annexure A6 TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT DATED 7.10.2024 IN I.A.NO.4/2024 IN M.A(ARB)NO.97/2024 Annexure A7 TRUE COPY OF OBJECTION DATED 16.10.2024 IN I.A.NO.3/2024 IN M.A.(ARB)NO.97/2024 FILED BY THE RESPONDENTS BEFORE THE III ADDL. DISTRICT JUDGE, THRISSUR.