Allowed

Zillion Infra Projects Pvt. Ltd. v. Bharat Petroleum Corporation Limited

Kerala HC9 Dec 2019AR/77/2018

Case brief

AI extract

What is this about?

High Court of Kerala appointed Mr. Justice J.M.James provisionally as sole arbitrator under Section 11(6) of the Arbitration Act for disputes between a contractor and BPCL based on an arbitration agreement in the tender document.

What did the court decide?

Appointment of Mr. Justice J.M.James as provisional arbitrator. Direction to registry to obtain disclosure statement for confirmation.

Zillion Infra Projects Pvt. Ltd. Vs Bharat Petroleum Corporation… — Arbitration | Kerala HC (2019)

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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 P.B.SURESH KUMAR

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MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941

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AR.No.77 OF 2018

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APPLICANT:

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M/s. ZILLION INFRA PROJECTS PVT. LTD. 5TH FLOOR, ANUSHKA TOWER, PLOT NO.2, GARG TRADE CENTRE, SECTOR 11, APPLICANT ROHINI, NEW DELHI, REPRESENTED BY ITS MANAGING DIRECTOR, C.S. SAXENA.

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BY ADVS. SRI.C.DHEERAJ RAJAN SUMITH KUMAR

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RESPONDENTS:

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1 BHARAT PETROLEUM CORPORATION LIMITED KOCHI REFINERIES, AMBALAMUGAL, ERNAKULAM, PIN - 682 302, REPRESENTED BY ITS MANAGING DIRECTOR.

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2 THE GENERAL MANAGER (PROJECTS) BHARAT PETROLEUM CORPORATION LIMITED, KOCHI REFINERIES,AMBALAMUGAL, ERNAKULAM DISTRICT,PIN-682302.

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R1 & R2 BY ADVS. M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH MENON SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM

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THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

A.R.No.77 of 2018

O R D E R

The applicant is a contractor who has undertaken a civil work of the first respondent. Disputes arose between the parties in connection with the execution of the work. The case set out by the applicant is that in terms of the agreement entered into between the parties in this connection, the disputes are to be resolved by recourse to arbitration and that the first respondent is not taking necessary steps for resolution of the disputes by recourse to arbitration. Hence this request for appointment of Arbitrator under section 11(6) of the Arbitration and Conciliation Act, 1996 (the Act).

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Annexure-A is the agreement entered into

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between the parties. Clause 91 of Annexure A agreement recites that the parties have to resolve the disputes arising in connection with the contract by recourse to arbitration. Clause 91(a) reads thus:

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“Any dispute or difference of any nature whatsoever, any claim, cross-claim, counter-claim or set off of the

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A.R.No.77 of 2018

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Corporation against the Contractor or regarding any right, liability, act, omission on account of any of the parties hereto arising out of or in relation to his agreement shall be referred to the sole Arbitration of the Director (Refinery) of the Corporation or of some officer of the Corporation who may be nominated by the Director (Refinery). The Contractor will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an Officer of the Corporation or that he has dealt with the matters to which the contract relates or that in the course of his duties as an Officer of the Corporation he had expressed views on all or any other matters in dispute or difference. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, the Director (Refinery) as aforesaid at the time of such transfer, vacation of office Or inability to act may in the discretion of the Director(Refinery) designate another person to act as arbitrator in accordance with the terms of the agreement to the end and intent that the original Arbitrator shall be entitled to continue the arbitration proceedings not withstanding his transfer or vacation or office as an Officer of the Corporation if the Director(Refinery) does not designate another person to act as arbitrator on such transfer, vacation of office or inability of original arbitrator. Such persons shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also a term of this contract that no person other than the Director(Refinery)

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A.R.No.77 of 2018

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or a person nominated by such Director(Refinery) of the Corporation as aforesaid shall act as arbitrator, hereunder. The award of the arbitrator so appointed shall be final conclusive and binding on all parties to the agreement subject to the provisions of the Arbitration and Conciliation Act, 1996 or any Statutory modification or re-enactment thereof and the Rules made thereunder for the time being in force shall apply to the arbitration proceedings under this clause.”

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It is trite that in a proceedings under Section 11(6) of the Act, the only issue to be considered is as to whether there exists an arbitration agreement and if it is found that the parties have agreed to resolve the disputes by recourse to arbitration, an Arbitrator can be appointed for resolution of the disputes. In so far as it is found that the parties have agreed to resolve their disputes by recourse to arbitration, the arbitration request is allowed and Mr.Justice J.M.James (Former Judge), Smirithi, T.C. 26/939(T.C. 27/1754), Vanchiyoor, Thiruvananthapuram–695 035 is appointed provisionally as the Arbitrator to resolve the disputes between the parties. The registry is directed to obtain disclosure statement under Section 11(8) of the Act from the

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A.R.No.77 of 2018

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Arbitrator and place the matter before the court for confirmation of the appointment of Arbitrator. The registry shall retain the original of the disclosure statement and append a copy of the same to the order.

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Sd/P.B.SURESH KUMAR, JUDGE.

A.R.No.77 of 2018

APPENDIX

APPLICANT'S EXHIBITS:

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ANNEXURE A TRUE COPY OF THE TENDER DOCUMENT ENTERED INTO BETWEEN THE APPLICANT AND THE 1ST RESPONDENT