Allowed

M/S P.K.Ramachandran v. State of Kerala

Kerala HC17 Jun 2022AR/96/2021

Case brief

AI extract

What is this about?

In this arbitration request, the High Court addressed a conflict between agreement terms and tender conditions regarding arbitration. Relying on precedent, the court dismissed the respondents' objection and appointed a retired judge as sole arbitrator, directing parties to comply with disclosure rules and fee sharing.

What did the court decide?

Retd. Justice Smt. Shircy V. appointed as Sole Arbitrator; arbitration costs and fees to be shared equally by parties.

M/S P.K.Ramachandran Vs State of Kerala — Arbitration | Kerala HC (2022)

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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 SATHISH NINAN

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FRIDAY, THE 17^TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944

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AR NO. 96 OF 2021

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APPLICANT:

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M/S P.K.RAMACHANDRAN, ENGINEEERING CONTRACTORS, DEEPA MANDIR, KARUVELIPADY, THOPPUMPADY P.O, KOCHI 682 005, REPRESENTED BY ITS MANAGING PARTNER, A.R DENOOP., DEEPA MANDIR, KARUVELIPADY, THOPPUMPADY P.O, KOCHI 682 005. BY ADVS. K.BABU THOMAS MARYKUTTY BABU

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001

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2 THE COMMISSIONER OF RURAL DEVELOPMENT COMMISSIONERATE OF RURAL DEVELOPMENT, 4TH FLOOR, SWARAJ BHAWAN, KAWADIAR P.O, NANTHENCODE, THIRUVANANTHAPURAM 695 003

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3 THE SUPERINTENDING ENGINEER, L.S.G.D SOUTH CIRCLE, 4TH FLOOR, SWARAJ BHAVAN, KAWADIAR P.O, NANTHENCODE, THIRUVANANTHAPURAM 695 003.

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BY SPECIAL GOVT. PLEADER SRI.K.V.MANOJ KUMAR

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THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = Arbitration Request No.96 of 2021 = = = = = = = = = = = = = = = = = = Dated this the 17^th day of June, 2022

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O R D E R

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The applicant is a contractor. Contract relating to

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the work for “L.S.G.D.-construction of “Swaraj Bhavan” at Nanthancode, Trivandrum” was allotted to the applicant, by the respondents. An agreement dated 05.06.2009 was executed regarding the same. Copy of the relevant portion of the agreement is produced along with the arbitration request as Annexure-A1. According to the applicant, the works in terms of the agreement were carried out; however, the entire amounts payable thereunder have not been paid. There has arisen certain disputes between the parties. Invoking the arbitration clause in the agreement and seeking appointment of arbitrator in terms thereof, the applicant issued Annexure-A2 notice dated 09.08.2021. Since there was no

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response from the respondents, the applicant has approached this Court seeking appointment of Arbitrator.

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A.R. No.96/2021

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-: 2 :-

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Heard Sri.Babu Thomas K., learned counsel for

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the appellant and Sri.K.V.Manoj Kumar, the learned Special Government Pleader.

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The existence of an arbitration clause in the

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agreement between the parties is not disputed. However, according to the respondents, the tender conditions contain a special provision that, arbitration shall not be a means to settle the dispute between the parties, arising out of the contract. Thus there are conflicting provisions. According to the respondents, the tender conditions form part of the contract and they are to prevail over the other terms incorporated in the agreement. The learned counsel for the petitioner would on the other hand relied on the judgment of the Apex Court in M.K.Abraham & Co. v. State of Kerala and Anr. [2009 (7) SCC 636] and contend that the terms of the agreement is

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to prevail over the tender conditions.

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A.R. No.96/2021

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-: 3 :-

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Section 16 of the Arbitration and Conciliation

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Act, 1996, authorises the Arbitral Tribunal to decide on jurisdiction including objections with regard to the existence or validity of arbitration agreement. Further

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the Apex Court has in Vidya Drolia & Ors. v. Durga Trading Corporation [2021 (2) SCC 1]. held that unless the court finds that patently the claim for arbitration is excluded, it shall be left with the Arbitral Tribunal to rule on its jurisdiction which would include the existence or otherwise of a provision for arbitration.

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In the light thereof, leaving open the rights of the parties to raise their contentions regarding the existence/validity of the arbitration agreement, the arbitration request is disposed of with the following directions:-

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(a) Retd. Justice Smt.Shircy V., residing at Building No.12/236-C, Aaiswarya, S.M.P. Colony Road, Near S.N.Junction, Tripunithura, Kochi-682301, is

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A.R. No.96/2021

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-: 4 :-

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nominated provisionally as the Sole Arbitrator to

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adjudicate upon the disputes between the parties arising out of Annexure-A1 agreement.

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(b) A copy of this order shall be communicated to

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the learned Sole 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 Sole Arbitrator by the Registry.

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statement of disclosure under Section 11(8) r/w. Section

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12(1) of the Act 3 of 2016.

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(d) The registry shall place the disclosure

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statement before this Court, for confirmation of the appointment of the Arbitrator.

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(e) The Arbitrator's fees shall be governed by the

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Kerala High Court (Fee Payable to Arbitrators) Rules, 2017.

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A.R. No.96/2021

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-: 5 :-

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(f) The arbitration costs and fees shall be shared

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equally.

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Sd/-

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SATHISH NINAN JUDGE

kns/-

//True Copy//

P.S. to Judge

APPENDIX OF AR 96/2021

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PETITIONER ANNEXURES

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Annexure A1 TRUE COPY OF THE RELEVANT PORTION OF AGREEMENT NO. 1/SE/LSGD/2009 Annexure A2 TRUE COPY OF NOTICE ISSUED BY THE APPLICANT, WHICH WAS DELIVERED ON 13-08-2021 Annexure A3 TRUE COPY OF PANEL OF FORMER JUDGES AND TWO CHIEF ENGINEERS RETIRED.

M/S P.K.Ramachandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

M/S P.K.Ramachandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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