Allowed

A Kondaiah v. the State of Karnataka

Karnataka HC11 Aug 2022CMP/288/2021

Case brief

AI extract

What is this about?

A CM.P. under Section 11(5) of the Arbitration and Conciliation Act, 1996 was filed by a contractor seeking appointment of an arbitrator due to a dispute with the State of Karnataka regarding a construction agreement. Unable to agree on an arbitrator, the Court allowed the petition and appointed Hon'ble Dr. Justice N. Kumar as the sole arbitrator.

What did the court decide?

Petition allowed. Hon'ble Dr. Justice N. Kumar, Former Judge, High Court of Karnataka, appointed as sole Arbitrator to resolve the dispute.

A Kondaiah Vs the State of Karnataka — Arbitration | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR CIVIL MISCELLANEOUS PETITION NO.288 OF 2021

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BETWEEN:

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A KONDAIAH S/O A T KONDAIAH AGED ABOUT 73 YEARS PWD CONTRACTOR CLASS-1 R/O TIRUMALA, 1854/10, 3^RD MAIN SWAMY VIVEKANANDA BADAVANE DAVANAGERE-577004

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...PETITIONER

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(BY SRI. R. GOPAL, ADVOCATE)

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AND:

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1 . THE STATE OF KARNATAKA VIDHANA SOUDHA BANGALORE – 560 001. BY ITS CHIEF SECRETARY

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2 . THE SECRETARY, GOVERNMENT OF KARNATAKA P.W AND PIWT DEPARTMENT 3^RD FLOOR, VIKAS SOUDHA BANGALORE-560001.

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3 . THE CHIEF ENGINEER, PWD, C AND B NORTH MALAMADDI, NEAR CULTURAL HALL U B HILLS, SIR M VISHWESHWARAIAH MARGA DHARWAD-580001.

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4 . THE SUPERINTENDING ENGINEER PWD, PORT AND INLAND WATER TRANSPORT DEPARTMENT, NEAR JAIL CIRCLE DURGIGUDI,

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SHIVAMOGGA-577201

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5 . THE EXECUTIVE ENGINEER, KARNATAKA PUBLIC WORKS, PORT AND INLAND WATER TRANSPORT DEPARTMENT DAVANAGERE DIVISION DAVANAGERE-577001.

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6 . THE ASSISTANT EXECUTIVE ENGINEER PUBLIC WORKS, PORT AND INLAND WATER TRANSPORT DEPARTMENT NO.8, HARIHAR-577601

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…RESPONDENTS

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(BY SMT. SHARADAMBA, AGA FOR R1 TO R3)

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THIS C.M.P. IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR TO DECIDE THE DISPUTE BETWEEN THE PETITIONER AND THE RESPONDENTS ARISING OUT OF THE CONTRACT ENTERED INTO AS PER AGREEMENT NO. 128/2011-12, VIDE ANNEXURE-B DATED 05/11/2011 FOR CONSTRUCTION OF PARALLEL ROAD TO RAILWAY TRACK BETWEEN RLC 207 AND RLC 208 ON BIRUR-SAMMASAGI ROAD (SH-76 BETWEEN DAVANGERE AND HARIHARA) AT HARIHARA TALUK, DAVANAGERE DISTRICT AND ALLOW THIS PETITION WITH COSTS AND GRANT SUCH OTHER RELIEFS AS THIS HON'BLE COURT DEEMS FIT TO GRANT UNDER THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE.

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THIS C.M.P. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The present petition under Section 11(5) of the Arbitration and Conciliation Act, 1996, has been filed by the petitioner – A. Kondaiah against the respondents-The State of Karnataka and others, seeking appointment of an

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Arbitrator in pursuance of Arbitration Clause of the Tender Notification vide Annexure-A.

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Clause-4 of the said Tender Notification, which contains an Arbitration clause, reads as under:-

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“ 4. Arbitration (Clause 24)

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4.1 The procedure for arbitration shall be as follows:

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(a) In case of dispute or difference arising between the Employer and the Contractor relating to any matter arising out of or connected with this agreement it shall be settled in accordance with the Arbitration and Conciliation Act 1996. The disputes or differences shall be referred to a Sole Arbitrator. The Sole Arbitrator shall be appointed by agreement between the parties; failing such agreement, by the Appointing Authority (any one of the Organizations as per list enclosed in Annexure)

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(b) Arbitration proceedings shall be held at Davanagere, Karnataka, India.

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(c) The cost and expenses of arbitration proceedings will be paid as determined by the Arbitrator. However the expenses incurred by each party in connection with the preparation, presentation, etc., shall be borne by each party itself.

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(d) Performance under the contract shall continue during the arbitration proceedings and payments due the Contractor by the Employer shall

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not be withheld, unless they are the subject matter of the arbitration proceedings.”

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3. The material on record discloses that since

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disputes arose between the parties in relation to the aforesaid Tender Notification containing the aforesaid arbitration at Clause No.4, on 13.07.2020, the petitioner invoked the aforesaid arbitration clause and issued a notice to the respondents putting forth various claims and contentions and nominating and appointing a sole arbitrator and calling upon the respondents to give their concurrence / consent to refer the dispute to arbitration.

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The respondent No.5 sent a reply dated 16.01.2021 disputing and denying the claims and contentions of the petitioner and informing him that they do not concur with the nominee-arbitrator appointed by the petitioner.

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5. Subsequently, the parties have not only failed

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to resolve their disputes but they have also not reached any consensus / agreement for appointment of an arbitrator and

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as such, petitioner is before this Court by way of the present petition.

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In view of the aforesaid facts and

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circumstances, though several contentions have been urged by both sides in support of their respective claims, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to allow this petition by referring the dispute between the parties to arbitration with the consent of both sides by appointing Hon’ble Dr. Justice N. Kumar, Former Judge, High Court of Karnataka, to act as the sole Arbitrator to resolve the dispute between the parties under the provisions of the Arbitration and Conciliation Act, 1996, as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.

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In the result, I pass the following

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ORDER

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(i) Petition is hereby allowed .

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(ii) Hon’ble Dr. Justice N. Kumar, Former Judge, High Court of Karnataka, is

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hereby appointed as the sole Arbitrator to resolve the dispute between the parties as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.

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(iii) All rival claims, contentions, etc., of both parties including contentions relating to maintainability, arbitrability, jurisdiction, limitation, stamp duty, etc., are left/kept open to be decided by the Arbitral Tribunal and no opinion is expressed on the same. (iv) A copy of this order be sent forthwith to the Arbitration and Conciliation Centre (Domestic & International), Khanija Bhavan, Bengaluru, for proceeding further and also to Hon’ble Dr. Justice N. Kumar, Former Judge, High Court of Karnataka, to the address available with the said Centre.

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(v) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same.

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Sd/JUDGE

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A Kondaiah v. the State of Karnataka

Case brief

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A Kondaiah v. the State of Karnataka

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