The court considered an arbitration request where the arbitral tribunal ceased to function due to transfer/retirement. It directed the first opposite party to reconstitute the tribunal under the relevant contract clause within 60 days.
Direction to the first opposite party to reconstitute the Arbitral Tribunal within 60 days from the date of receipt of the order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY ,THE 07TH DAY OF DECEMBER 2018 / 16TH AGRAHAYANA, 1940
AR.No. 59 of 2018
APPLICANT:
JOSE THOMAS M GOVERNMENT CONTRACTOR,JOSE BUNGALOW, PIDAVOOR P.O, PATHANAPURAM,KOLLAM 691 625.
BY ADVS.
SRI.K.BABU THOMAS SMT.MARYKUTTY BABU
OPPOSITE PARTIES
REP. BY THE GENERAL MANAGER,SOUTHERN RAILWAY, HEAD QUARTERS, PARK TOWN, CHENNAI 600 003.
BY ADVS.
SRI.C.S.DIAS, SC RAILWAYS
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 07.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Arbitration Request No.59/2018
ORDER
This Arbitration Request is filed pointing out
that the members of the Arbitral Tribunal ceased to be members on account of transfer/retirement and it is not functioning.
2. The learned Standing Counsel for the opposite party points out that clause 64.(3)(c)(i) of Indian Railways General Conditions of Contract, 2014 provides for the reconstitution of the Arbitral Tribunal in such
contingencies which reads as follows:
64.(3)(c)(i) : if one or more of the arbitrators appointed as above refuses to act as arbitrator, withdraws from his office as arbitrator, or vacates his/their office/offices or is/are unable or unwilling to perform his functions as arbitrator for any reason whatsoever or dies or in the opinion of the General Manager fails to act without undue delay, the General Manager shall appoint new arbitrator/arbitrators to act in his/their place in the same manner in which the earlier arbitrator/arbitrators had been appointed. Such reconstituted Tribunal may, as its discretion, proceed with the reference from the stage at which it was left by the previous arbitrator (s).
As it is seen that the Arbitral Tribuanl, to which
the dispute between the applicant and the opposite
Arbitration Request No.59/2018
:3:
party was referred, have ceased to function, there shall be a direction to the first opposite party to reconstitute the Arbitral Tribunal as provided in clause 64.(3)(c)(i) within a period of 60 days from the date of receipt of a copy of the order in accordance with rules.
Sd/P.V.ASHA JUDGE
rkc
Arbitration Request No.59/2018
:4:
APPENDIX
PETITIONER'S EXHIBITS
ANNX A1: TRUE COPY OF LETTER OF ACCEPTANCE ISSUED WITH CONTRACT VALUE OF RS.1,91,15,718.75
ANNX A2: TRUE COPY OF NOTICE DEMANDING PAYMENT AND ARBITRATION CLASUE
ANNX A3: TRUE COPY OF LETTER OF APPOINTMENT OF THE ARBITRAL TRIBUNAL OF 3 MEMBERS
ANNX A4: TRUE COPY OF MINUTES OF THE HEARING OF THE ARBITRAL TRIBUNAL HELD ON 24.5.16
ANNX A5: TRUE COPY OF LETTER NO.W.148/CN/TVC/ARB/NITI-AYOG FOR SHIFTING TO NEW PROCEDURE
ANNX A6: TRUE COPY OF REPLY OF THE APPLICANT INTIMATING WILLINGNESS TO SHIFT TO NEW PROCEDURE
ANNX A7: TRUE COPY OF LETTER OF THE FIRST OPPOSITE PARTY FOR RECONSTITUTION OF THE TRIBUNAL
ANNX A8: TRUE COPY OF LETTER INTIMATING APPOINTMENT OF NOMINEE IN THE TRIBUNAL
ANNX A9: TRUE COPY OF LETTER OF THE APPLICANT TO THE OPPOSITE PARTIES
ANNX A10: TRUE COPY OF LETTER OF SRI.KAMALESH SHUKLA INABILITY TO CONTINUE THE ARBITRAL PROCEEDINGS.
ANNX A11: TRUE COPY OF PROCEEDINGS OF THE ARBITRAL TRIBUNAL
3 issues framed by the court
Whether the first opposite party is directed to reconstitute the arbitration tribunal after its members ceased to function.
Whether the direction for reconstitution is applicable under clause 64(3)(c)(i) of Indian Railways General Conditions of Contract 2014.
Whether the first opposite party is directed to reconstitute the arbitration tribunal within 60 days.
1 provisions across 1 enactments
JOSE THOMAS M
UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY
THE CHEIF ENGINEER(CONSTRUCTION), SOUTHERN RAILWAY, ERNAKULAM
THE DEPUTY CHIEF ENGINEER(CONSTRUCTION) SOUTHERN RAILWAY, THIRUVANANTHAPURAM
P.V. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
