M/S Srinivas Constructions Vs M/S Tumkuru Smart Ciyt Ltd.

M/S SRINIVAS CONSTRUCTIONS, SOLE PROPRIETORSHIP, HAVING REGISTERED OFFICE AT #11, SITE NO.9, HUSKURU MAIN ROAD, HUSKURU, DASANAPURA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL - 562 162, REPRESENTED HEREIN BY ITS SOLE PROPRIETOR SHRI. SRINIVAS N.

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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SHRI. SRINIVAS N S/O NARAYANAPPA, SOLE PROPRIETOR OF M/S SRINIVAS CONSTRUCTIONS, AGED ABOUT 34 YEARS, NO. 25, NEAR MUTTHARAYA TEMPLE, HUSKUR, BENGALURU RURAL - 562 123.

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…PETITIONERS

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(BY SRI. HITHESH GOWDA B.J, ADVOCATE FOR SRI. SANTHOSH.U, ADVOCATE)

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AND:

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M/S. TUMKURU SMART CIYT LTD., HAVING ITS OFFICE AT, MAHALAKSHMI ARCADE,

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NC: 2025:KHC:23415 CMP No. 506 of 2024

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HC-KAR

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S.S. PURAM MAIN ROAD, COFFEE BOARD COLONY, TUMKURU - 572 102, REPRESENTED HEREIN BY ITS EXECUTIVE ENGINEER.

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…RESPONDENT

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(BY SRI. PRASHANTH B.R, ADVOCATE)

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THIS CIVIL MISCELLANEOUS PETITION UNDER SECTION 11(5) AND 11 (6) OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO A. APPOINT AN ARBITRATOR AS REFERRED IN ARBITRATION NOTICE DATED 03.09.2024, AS PER CLAUSE 6 OF THE SPECIAL CONDITIONS OF CONTRACT (SCC) FORMING PART OF THE AGREEMENT DATED 04.02.2021 AND PRODUCED AS (ANNEXURE C) TO ADJUDICATE UPON THE DISPUTES THAT HAVE ARISEN BETWEEN THE PETITIONER AND THE RESPONDENT

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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This Civil Miscellaneous Petition is filed by the petitioner under Section 11(6) of the Arbitration and Conciliation Act, 1996, for the appointment of an Arbitrator to resolve the dispute between the parties for the petition as per clause 6 of the Special Conditions of Contract (SCC), read with clause 24 of the General

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NC: 2025:KHC:23415 CMP No. 506 of 2024

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HC-KAR

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Conditions of Contract, that it was forming a part of the agreement dated 04.02.2021 Vide Annexure-C read with Annexure-A.

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Brief facts, leading rise to the filing of this petition are as follows:

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The respondent invited tenders for Integrated Development, execution, completion and remedying of any defects in the works of "CYCLE 4 CHAIN PHASE 2, THUMKURU" by way of the tender notification dated 17.12.2020. The respondent accepted the bid of the petitioners and issued a letter of acceptance on 22.01.2021. The petitioner and the respondent entered into a contract of agreement on 04.02.2021. The respondent issued a work order on 04.02.2021 to the petitioners granting 10% clearance out of 100% of the work as per the Tender. The petitioners submitted bills on 20.03.2022 and 15.04.2022 respectively. The respondent instructed the petitioner to conduct a joint inspection to

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HC-KAR

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clear the site hindrances. The petitioners were repeatedly reminding the respondent to clear the site for the execution of the work as per the contract. However, the respondent had not cleared 90% of the sale for commencement. The petitioners invoked the arbitration clause under the Agreement dated 04.02.2021 by issuing an arbitration notice on 18.05.2022. The respondent replied to the arbitration notice with an alternative proposal, vide reply dated 15.06.2022 to withhold the arbitration process till finalization of the said alternative proposal. However, the respondent did not pay the outstanding bills. The petitioners approached this Court in CMP.No.102/2024. This Court vide order dated 12.06.2024, on the submission made by the learned counsel for the petitioners that the petitioners may be permitted to withdraw the petition and approach the "International Centre for Alternative Disputes Resolution (India)" dismissed the petition as withdrawn, reserving the liberty to the petitioners to approach the International

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HC-KAR

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Centre for Alternative Dispute Resolution. After the disposal of the said Civil Miscellaneous petition, the petitioners vide Annexure-T issued a notice to the respondent as well as to the Secretary General, the "International Centre for Alternative Disputes Resolution (India)" on 03.09.2024. The postal cover was returned with a share stating unclaimed and returned to the sender. The petitioners have exhausted the remedy available to him. Hence, this petition.

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The respondent did not file the statement of objections to the petition. Hence, the objections to the petition is taken as not filed.

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Heard the arguments of the learned counsel for the petitioners and the respondent.

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Learned counsel for the petitioners submits

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that the petitioners have submitted the bills, despite that the respondent is not paying the outstanding dues. The petitioners invoked the arbitration clause by issuing an

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HC-KAR

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arbitration notice on 18.05.2022 and the respondent replied to the legal arbitration notice, requesting the petitioners to withhold the arbitration process till the finalization of the alternate proposal. The petitioners issued a reminder. Despite issuing a notice and a reminder, the respondent did not clear the bills. The petitioners filed the Civil Miscellaneous Petition in CMP No.102/2024. The petitioners had withdrawn the petition with a liberty to approach the "International Centre for Alternative Disputes Resolution (India)" and accordingly, the petitioners have issued a notice to the respondent and the Secretary General of the International Centre for Alternative Disputes Resolution on 03.09.2024. He submits that the notice was returned as unclaimed. He submits that there is an arbitration clause on the Agreement dated 04.02.2021 and the dispute between the petitioners and the respondent must be resolved through an arbitration. Hence, he prays to allow the petition.

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NC: 2025:KHC:23415 CMP No. 506 of 2024

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HC-KAR

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Per contra, learned counsel for the respondent

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submits no objection to allow the petition and appointment of an Arbitrator. Hence, prays to dispose of the petition.

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Perused the records, and considered the submissions of the learned counsel for the parties.

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The point that arises for consideration is as

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follows:

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"Whether the petitioners have made out a ground to refer the arbitral dispute between the parties to the petition in terms of clause 6 of the Special conditions of contract forming part of agreement dated 04.02.2021 vide Annexure-C, as per the provisions of the Arbitration and Conciliation Act, 1996 and the Rules?"

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There is no dispute that the respondent quoted a tender for Integrated Development, execution, completion and remedying of any defects in the work of "CYCLE 4 CHANGE PHASE 2, TUMKURU, on 17.12.2020. The petitioners were the lowest bidders and the petitioner's bid was accepted by the respondent and a

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HC-KAR

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letter of acceptance was issued on 22.01.2021 and a contract of agreement came to be executed between the petitioners and the respondent on 04.02.2021. After completion of work, the petitioners submitted a bill Nos.1 and 2 on 20.03.2022 and 15.04.2022. The respondent did

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not clear the bills submitted by the petitioners. The petitioners issued a demand notice and invoked an arbitration clause by issuing a notice on 18.05.2022, the respondent replied to the arbitration notice to withhold the arbitration process till finalization of an alternative proposal. The petitioners aggrieved by the inaction on the part of the respondent in payment of outstanding bills, approached this Court in Civil Miscellaneous Petition No.102/2024. The petitioners withdraw the said petition with liberty to approach the International Centre for Alternative Disputes Resolution (India). After the disposal of the Civil Miscellaneous Petition, the petitioners issued a notice to the respondent and the Secretary General of the International Centre for Alternative Disputes Resolution on

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HC-KAR

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03.09.2024 through an R.P.A.D. The postal cover return

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with a shara as unclaimed. Admittedly, the Special Conditions of Contract forming a part of the Agreement dated 04.02.2021, provides for the Arbitration, that reads as follows:

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1. "In this Agreement, words and expression shall have the same meaning as are respectively assigned to them in the Conditions of Contract hereinafter referred to, and they shall be deemed to form and be read and constructed as part of this Agreement.

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2. In consideration of the payments to be made by the Employers to the Contractor as hereinafter mentioned, the Contractor hereby covenants with the Employer to execute and complete the Works and remedy any defects therein in conformity in all aspects with the provisions of the Contract.

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3. The Employer hereby convenants to pay the Contractor in consideration of the execution and completion of the Works and the remedying the defects wherein the Contract Price or such other sum as may become payable under the provisions of the Contract at the times and in the manner prescribed by the Contract.

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4. The following documents shall be deemed to form and be read and construed as part of this Agreement, Viz: i) Letter of Acceptance; ii) Notice to proceed with the works; iii) Contract Data; iv) Conditions of contract (including Special Conditions of Contract);

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v) Bill of Quantities; vi) Specifications; vii) Drawings; and viii) Any other documents listed in the Contract Data as forming part of the contract."

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NC: 2025:KHC:23415 CMP No. 506 of 2024

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HC-KAR

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From the perusal of the Arbitration clause i.e.,

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clause 6 of the Special Conditions of Contract of Agreement dated 04.02.2021, which provides an arbitration clause, in case of a dispute or a difference arising between the parties, the dispute shall be referred to a sole arbitrator. The list of organizations, that are considered as an Appointing Authority for the appointment of an arbitrator is mentioned in Clause 6(e). The petitioners approached the International Centre for Alternative Disputes Resolution (India) by issuing a notice dated 03.09.2024 and there was no response from the said organization. Thus, the petitioners has no other remedy except to file this petition.

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Admittedly, there is no dispute regarding the

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execution of the agreement dated 04.02.2021 between the petitioners and the respondent and a dispute arose between the petitioners and the respondent regarding the terms of the agreement dated 04.02.2021 and the same must be resolved through an arbitration. Hence, the

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NC: 2025:KHC:23415 CMP No. 506 of 2024

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HC-KAR

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petitioners made out a ground to refer the matter to the Arbitration. In view of the above discussion, I answer the point for consideration in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The Civil miscellaneous petition is allowed .

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ii. Sri. G.Chandramouli, Nayak, Chief Engineer, (Retired), KPWD is nominated as an Arbitrator to resolve the dispute between the parties to the petition as per the provisions of the Arbitration and Conciliation Act, 1996 and the Rules.

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iii. The office is directed to communicate this order to the learned sole Arbitrator and the Arbitration and Conciliation Centre, Bengaluru.

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iv. All the contentions of the parties are kept open.

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v. In view of the disposal of the petition, pending IA's if any, disposed of accordingly.

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Sd/(ASHOK S.KINAGI) JUDGE

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PK

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List No.: 1 Sl No.: 18

M/S Srinivas Constructions v. M/S Tumkuru Smart Ciyt Ltd.

Case brief

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M/S Srinivas Constructions v. M/S Tumkuru Smart Ciyt Ltd.

Case brief

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