IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 WA.No. 1266 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.6055/2007 Dated 17/06/2010 .................... APPELLANT/1ST RESPONDENT: ----------------------------- M/S.KERALA MINERALS & METALS LTD., SANKARAMANGALAM, CHAVAR-691 583, KOLLAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENTS/PETITIONERS & 2ND RESPONDENT: -------------------------------------------- 1. M/S.GOYAL MG GASES PVT.LTD., 53, FRIEND COLONY (EAST) NEW DELHI-110 065, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE SHRI.V.G.GUPTA, COMPANY SECRETARY. 2. M/S.KOLLAM GASES PVT.LTD., 53, FRIEND COLONY (EAST), NEW DELHI-110 065, REPRESENTED BY ITS AUTHORIZED REPRESNTATIVE SHRI V.G.GUPTA. 3. STATE BANK OF INDIA, 11TH FLOOR, JAWAHAR VYPAR BHAVAN, TOLSTOY MARG, NEW DELHI-110 001, REPRESENTED BY ITS CHEIF MANAGER. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 & 2 SRI.S.SUJIN FOR R1 & 2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... Writ Appeal No.1266 of 2010 .................................................................... Dated this the 3rd day of August, 2010. JUDGMENT Ramachandran Nair, J. Writ Appeal is filed by the first respondent in the W.P.(C) challenging the judgment of the learned Single Judge wherein appellant's proposal to award contract for setting up of Oxygen plant is stayed by this court. We have heard counsel for the appellant and counsel appearing for respondents 1 and 2. 2. The case of respondents 1 and 2 is that they were awarded a contract by the appellant in 2006 for construction of an Oxygen plant in the premises of the appellant on a Build Own and Operate basis. Whatever be the reason, respondents 1 and 2 could not complete the project in terms of the contract. Both appellant and respondents 1 and 2 make allegations against each other pertaining to the earlier contract. Admittedly arbitration proceeding is going on between appellant and respondents 1 and 2 in respect of the earlier contract. However, the contention raised by respondents 1 and 2 is that appellant is not entitled W.A. 1266/2010 2 to set up another Oxygen plant during the pendency of the arbitration proceeding. The learned Single Judge stayed finalisation of proceedings pursuant to invitation of tender until finalisation of arbitration proceedings. We do not think there is any justification for this court to interfere with the company's right to set up a plant for their purposes merely because another contractor engaged for construction of the plant under a different scheme ended up in dispute between the parties leading to arbitration. Counsel for the appellant submitted that the contract awarded to respondents 1 and 2 in respect of which breach was committed that led to arbitration is a scheme where the plant would be built, owned and operated by the contractor. However, the present proposal is to set up a plant by the company for it's purpose at it's own cost which means that the scheme for setting up the plant under the BOO scheme is given up by the company. In the circumstances, we do not think this court can interfere with the company's proposal to set up the plant by inviting fresh tenders. If respondents 1 and 2 are not black-listed, then they are also free to submit tenders for the plant. The pending dispute between parties can be settled in arbitration W.A. 1266/2010 3 proceedings and it is not for this court to consider the same. Writ Appeal is allowed vacating the judgment of the learned Single Judge and with the above observations. Even though counsel for respondents 1 and 2 submitted that right to file petition under Section 9 of the Arbitration and Conciliation Act to the civil court should be retained, we make it clear that no petition should lead to interference with the right of the appellant to set up a new plant which stands concluded by this judgment. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms