Allowed

M/S.Kaikara Construction Company v. State of Kerala

Kerala HC11 Jul 2016WP(C)/2337/2016

Case brief

AI extract

What is this about?

This writ petition challenged the first respondent's inaction in appointing an arbitrator to resolve a dispute over unpaid construction works. The court directed the respondent to consider the petitioner's applications and take a decision within two months regarding the appointment of an arbitrator.

What did the court decide?

Direction to the first respondent to consider Exts. P8 to P10 applications and take a decision within two months on appointing an arbitrator to resolve the dispute.

M/S.Kaikara Construction Company Vs State of Kerala — Arbitration | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938

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WP(C).No. 2337 of 2016 (N)

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PETITIONER(S):

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1. M/S.KAIKARA CONSTRUCTION COMPANY, KAITHAVARAM BUNGLOW, THIRUMULLAVARAM P.O,

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KOLLAM-691 012, A REGISTERED PARTNERSHIP, REPRESENTED BY ITS MANAGING PARTNER, A.ABDUL SALAM, KAITHAVARAM BUNGALOW, THIRUMULLAVARAM P.O,

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KOLLAM-691 012.

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2. A.ABDUL SALAM, KAITHAVARAM BUNGALOW, MANAGING PARTNER,

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M/S.KAIKARA CONSTRUCTION COMPANY, KAITHAVARAM BUNGALOW, THIRUMULLAVARAM P.O, KOLLAM-691 012.

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BY ADVS.SRI.K.BABU THOMAS SMT.MARYKUTTY BABU

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,

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FISHERIES & PORTS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. THE SUPERINTENDING ENGINEER, HARBOR ENGINEERING NORTH CIRCLE,

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ERANHIPALAM P.O, KOZHIKODE-673 006.

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3. THE EXECUTIVE ENGINEER, HARBOR ENGINEERING DIVISION, PUTHIYANGADI P.O,

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KOZHIKODE-673 021. (HARBOR ENGINEERING DIVISION, MALAPPURAM, PONNANI).

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R1 TO R3 BY ADDL. ADVOCATE GENERAL SRI.K.A.JALEEL BY SR GOVERNMENT PLEADER SRI.T.P.SAJID

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 2337 of 2016 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : TRUE COPY OF RELEVANT PORTION OF AGREEMENT AND SCHEDULE OF WORKS. DATED 12/4/2002

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P2 : TRUE COPY OF G.O(RT)NO.224/2006/&PD FOR PAYMENT OF REVISED RATE AND SCHEDULE OF BALANCE QUANTITIES. DATED 2/5/2006

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P3 : TRUE COPY OF G.O(RT)NO.513/2007/F&PD FOR ALLOWING EXTENSION OF TIME WITH PENALTY OF RS.36,44,000/- AND RS.21,956/DAY, DATED 31/7/2007

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P4 : TRUE COPY OF G.O(RT)NO.257/2008/F&PD, DIRECTING TERMINATION OF CONTRACT AT RISK AND COST. DATED 9/4/2008

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P5 : TRUE COPY OF G.O(RT)NO.715/2008/F&PD ISSUED BY THE GOVERNMENT AFFIRMING TERMINATION. DATED 12/12/2008

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P6 : TRUE COPY OF NOTICE DEMANDING PAYMENT OF RS.4,34,12,105/- TOWARDS RISK AND COST CLAIMED. DATED 28/5/2009

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P7 : TRUE COPY OF THE INTERIM ORDERS DT 4-11-2009, 3-6-2010 AND 14-9-2010 IN WPC.NO.31369/2009, DATED 4/11/2009

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P8 : TRUE COPY OF BILL CUM NOTICE OF THE PETITIONER DEMANDING PAYMENT OF RS.3,45,25,106/- OR TO APPOINT AN ARBITRATOR. DATED 15/4/2011

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P9 : TRUE COPY OF COVERING LETTER OF THE BILL FOR PAYMENT OF RS. 5,02,57,203/- AND LETTER DT 1-11-2013 RETURNING BILL, DATED 25/9/2013.

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P10 : TRUE COPY OF NOTICE SENT TO THE RESPONDENTS DEMANDING PAYMENT OF RS.11,67,41,895/- DATED 31/7/2015

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P11 : TRUE COPY OF CIRCULAR NO.13178/H3/2002/PWD DIRECTING TO OBTAIN DECREE OF CIVIL COURT FOR DAMAGES CLAIMED. DATED 10/5/20053

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RESPONDENT(S)' EXHIBITS

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R3(A): COPY OF THE ORDER NO.D3/3407/00/SE DATED 7/6/2004

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R3(B): COPY OF TE ORDER NO.D6/634/01/CE DATED 28/06/2004

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R3(C): COPY OF TE GO(RT) NO.224/06/F&PD DATED 2/5/06

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R3(D): COPY OF TE AGREEMENT DATED 30/06/2006

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R3(E): COPY OF THE NOTICES DATED 04/11/2006, 02/01/2007, 05/02/2007, AND 02/03/2007

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2/-

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-2-

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WP(C).NO.2337/2016

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R3(F): COPY OF THE G.O(RT) NO.513/07/F&PD DATED 31/07/2007 R3(G): COPY OF THE NOTICES DATED 31/10/2007 & 31/12/2007

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R3(H): COPY OF THE CLAUSE NO.48 OF FORM NO.83

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R3(I): COPY OF THE G.O(RT) NO.715/08/F&PD DATED 12/12/2008 R3(J): COPY OF THE ORDER NO.D3/3407/00/SE DATED 29/04/2008 R3(K): COPY OF THE LETTER NO.D1/1643/00/EE DATED 17/04/2009

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R3(L): COPY OF THE CLAUSE 3 OF THE AGREEMENT

/TRUE COPY/

P.A.TO JUDGE

sts

SHAJI P. CHALY, J.

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W.P.(C). No.2337 of 2016

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----------------------------------------

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Dated this the 11^th day of July, 2016

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JUDGMENT

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This writ petition is filed by the petitioner seeking direction to the first respondent to forthwith consider and pass orders on Exts.P8 to P10 for payment of unpaid value of works carried out by the petitioner, within a time limit and for a further direction to the respondent to appoint a Technical Expert Arbitral Tribunal for resolution of the disputes arose out of construction of Break Waters included in Ext.P1 with direction to pass and publish the award, within a stipulated time and for other related reliefs.

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Brief facts for the disposal of the writ petition are thus:-

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First petitioner is awarded with work as per Ext.P1. According to petitioner, the work was completed, but the payment towards work are not paid. The main

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W.P.(C). No.2337 of 2016

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contention raised by petitioner in this writ petition is

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that, as per Clause 24 of Ext.P1 any dispute that may arise between the contractor and the department will not be referred to arbitration unless the Government takes a decision to the contrary. It is also contended that, as claimed in Ext.P8, Government is vested with powers to direct arbitration for resolution of disputes. Therefore, the contention put forth by petitioner in this writ petition is that, in spite of submission of Exts.P8 to P10, the first respondent is not taking any action to invoke the discretionary power conferred under the agreement. It is in this background, this writ petition is filed.

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First respondent has filed a counter affidavit refuting the allegations , statements and claims made by the petitioner in this writ petition. It is contended that, the petitioner has not completed the work in accordance with the terms of the contract and

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W.P.(C). No.2337 of 2016

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therefore, the work was terminated at the risk and cost of the petitioner. That apart, it is also contended that, even for carrying out extra work the contractor has taken care of and petitioner is not entitled to get any additional amount for the works so done.

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Learned Government Pleader has brought my attention to Exts.R3(h) and R3(l) to substantiate the contentions put forth by the Government. The relevant portions which are as follows:-

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“48. The quantities provided for in the schedules may vary widely and the contractor should be prepared to do any excess over the schedule quantities at his quoted rates for the works”.

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“The parties to this contract agreed to under take the condition that arbitration shall not be a means of settlement of disputes or claim or anything on account of this contract.”

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After evaluating the fact situations and hearing the arguments across the Bar, the sole

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question to be considered is whether the petitioner is

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W.P.(C). No.2337 of 2016

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entitled to get a direction to the Government to invoke the power under Ext.P1 agreement to appoint an arbitrator to resolve the dispute, that is put forth by the petitioner pursuant to Ext.P1 contract.

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On a perusal of Ext.P1 it is categoric and

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clear that Clause 24 makes a provision which reads thus:-

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“Not withstanding anything contained in Form 83 any dispute that may arise between the contractor and the department will not be referred to arbitration unless the Government takes a decision to the contrary.”

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On an evaluation of the said provision it is

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categoric and clear that, Government is vested with power to appoint any arbitrator to resolve the dispute that arises under the contract. Requesting the Government to invoke the said powers, petitioner has submitted Exts.P8 to P10 applications. Therefore, I think it is only appropriate that, Government is directed to take into consideration Clause 24 of Ext.P1

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W.P.(C). No.2337 of 2016

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agreement and take a decision as to whether an arbitrator is to be appointed in order to resolve the dispute that arose between the petitioner and the Government, as per Ext.P1 agreement.

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Therefore, there will be a direction to the first respondent to take a decision on Exts.P8 to P10 applications submitted by the petitioner, in accordance with law, within a period of two months from the date of receipt of a copy of this judgment.

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Writ petition is disposed of accordingly.

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Sd/-

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SHAJI P. CHALY, JUDGE

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dlk/11/7/

M/S.Kaikara Construction Company v. State of Kerala

Case brief

What is this about?

What did the court decide?

M/S.Kaikara Construction Company v. State of Kerala

Case brief

What is this about?

What did the court decide?

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