The court appointed Rtd. Justice Sunil Thomas as the sole arbitrator to adjudicate a dispute over the completion status of a water pipeline repair contract. Inter-party bias was avoided by rejecting the respondents' panel.
Appointment of Rtd. Justice Sunil Thomas as Sole Arbitrator; directing equal sharing of costs; revocation of interim stay.
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 MR. JUSTICE SATHISH NINAN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
AR NO. 54 OF 2022
PETITIONER:
OM CONSTRUCTION,SR NO 47/1, HOUSE NO.1240 VIGHNAHAR PARK, SUNITA NAGAR, WADGAON SHERI PUNE - 411014 REPRESENTED BY ITS MANAGING PARTNER MR. SAMEER PRABHAKAR GAIKWAD. BY ADVS. MADHU RADHAKRISHNAN NELSON JOSEPH M.D.JOSEPH DEEPAK ASHOK KUMAR
RESPONDENT:
1 ENGINEER IN CHIEF DIRECTORATE OF CONTRACT ADMINISTRATION AND MANAGEMENT MILITARY ENGINEER SERVICES ARMY HEAD QUARTERS, KASHMIR HOUSE, RAJAJI MARG NEW DELHI – 110011. 2 CHIEF ENGINEER (NW) KOCHI MILITARY ENGINEER SERVICES, KATARIBAGH, NAVAL BASE (PO),KOCHI – 682004. 3 GARRISON ENGINEER (FORT) KOCHI,MILITARY ENGINEER SERVICES, FORT KOCHI – 682001. BY S.KRISHNA, CGC
THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
==============================
Arbitration Request No.54 of 2022 ========================== Dated this the 14th day of June, 2022
ORDER
The petitioner entered into a contract with the
respondents with regard to the work of “Repair for replacement of Fresh Water Distribution Pipelines”. Exts A1 to A3 are the documents relating to the contract. According to the petitioner, the work was completed before the agreed date of completion and they sought for issuance of completion certificate. However, the respondents took the stand that the work as agreed has not been completed and 20% of the work still remains. There arose dispute between the parties. Though the contract between the parties contains an arbitration clause and though the petitioner sought for appointment of an arbitrator in terms thereof, the respondent have
not co-operated. It is on the said contention that the petitioner has approached this Court under Section 11 of
the Arbitration and Conciliation Act, 1996.
Arbitration Request No.54 of 2022 -: 2 :-
the averments in the arbitration petition, on its merits.
Radhakrishnan on behalf of the petitioner and Smt.S.Krishna, the learned Central Government Standing Counsel.
appointed. The learned counsel for the petitioner submits that the nominees of the respondent may not be
Arbitration Request No.54 of 2022 -: 3 :-
appointed since the petitioner would have concerns over a possible bias.
arbitrator be appointed to arbitrate into the dispute between the parties.
Request is ordered as hereunder :-
(a) Rtd. Justice. Sunil Thomas,68/1288A,
St.Benedict's Extension Road, Kochi – 682018, is provisionally nominated as the Sole Arbitrator to adjudicate upon the disputes between the parties arising out of Annexure A1 to A3.
(b) A copy of this order shall be communicated to the learned Arbitrator by the Advocate of the applicant within a period of one week from today. A copy of the order shall also be forwarded to the learned Arbitrator
by the Registry in his address.
(c) The Arbitrator is requested to forward his
Arbitration Request No.54 of 2022 -: 4 :-
statement of disclosure under Section 11(8) r/w. Section 12(1) of the Act 3 of 2016. The disclosure statement shall be placed before this Court for confirmation of the appointment of the Arbitrator.
(d) The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017.
equally.
(f) The interim order of stay granted by this Court
on 05.04.2022 will not be operative any further.
Sd/- Sathish Ninan, Judge
vdv
APPENDIX OF AR 54/2022
PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE TENDER ACCEPTANCE LETTER DATED 25.06.2020 Annexure A2 TRUE COPY OF THE GENERAL CONDITIONS OF CONTRACTS FOR LUMPSUM CONTRACTS. Annexure A3 TRUE COPY OF THE ERRATA TO THE GENERAL CONDITIONS OF CONTRACT IAFW-2249 Annexure A4 TRUE COPY OF THE LETTER DATED 22.09.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. Annexure A5 TRUE COPY OF THE LETTER DATED 23-9-2021 ISSUED BY THE 3RD RESPONDENT. Annexure A6 TRUE COPY OF THE REPLY STATEMENT DATED 06.10.2021 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. Annexure A7 TRUE COPY OF THE ARBITRATION INVOKING LETTER DATED 12.10.2021 ISSUED BY THE PETITIONER. Annexure A8 TRUE COPY OF THE REPLY LETTER DATED 29.10.2021 ISSUED BY THE 3RD RESPONDENT. Annexure A9 TRUE COPY OF THE LETTER DATED 01.11.2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Annexure R1(a) A true copy of the award of tender dated 25.06.2020 Annexure R1(b) A true copy of the work order dated 10.08.2020 Annexure R1(c) A true copy of the letter dated 18.02.2021 Annexure R1(d) A true copy of the notice dated 21.06.2020 Annexure R1(e) A true copy of the letter dated 09.08.2021 Annexure R1(f) A true copy of the letter dated 20.09.2021 Annexure R1(g) A true copy of the letter dated 01.11.2021 Annexure R1(h) A true copy of the letter dated 08.11.2021 Annexure R1(i) A true copy of the photograph sent by the applicant Annexure R1(j) A true copy of the letter dated 18.10.2021 Annexure R1(k) A true copy of the communication dated 29.10.2021 Annexure R1(l) A true copy of the letter dated 02.11.2021 Annexure R1(m) A true copy of the letter dated 18.10.2021 Annexure R1(n) A true copy of the relevant extract of the General Conditions of Contract Annexure R1(o) A true copy of the panel of arbitrators
3 issues framed by the court
Whether a sole independent arbitrator should be appointed to adjudicate the dispute regarding the stage of completed work.
Whether the opponent panel of arbitrators constituted by the Ministry of Defence can be appointed given concerns over bias.
What orders to issue for the constitution of the arbitration tribunal, fees, and disclosure procedures.
1 provisions across 1 enactments
Om Construction
Engineer in Chief, Directorate of Contract Administration and Management, Military Engineer Services
Chief Engineer (NW), Kochi
Garrison Engineer (Fort), Kochi
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
