IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 AR.No. 42 of 2007() ------------------- APPLICANT: ------------ M/S.ENKON ENGINEERS & CONTRACTORS, MAMANGALAM CHURCH ROAD, COCHIN-25, REP. BY JOSEPH VILANGADAN, VILANGATTIL HOUSE, MAMANGALAM, COCHIN - 25. BY ADV. SRI.K.BABU THOMAS OPPOSITE PARTIES: --------------------- 1. UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, CHENNAI - 600 003. 2. THE PRINCIPAL CHIEF ENGINEER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, WORK BRANCH, CHENNAI - 600 003. 3. THE DIVISIONAL RAILWAY MANAGER (WORKS), SOUTHERN RAILWAY, TRIVANDRUM - 14. 4. SRI.P.JAYAKUMAR, DEPUTY CHIEF ENGINEER, CARRIAGE WORKS, PERAMBUR, TAMIL NADU. R1 TO R4 BY ADV. SRI.N.B.SUNIL NATH, SC, RAILWAYS THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ======================= Arbitration Request No. 42 of 2007 ======================= Dated this the 4th day of March, 2008 JUDGMENT The Honourable Chief justice on an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 Annexure A8 was issued on 5.3.2007 and the petitioner filed this claims statement, Annexure A9, on 25.4.2007. 2. This AR is filed on 3.12.2007 stating that a situation has arisen in terms of Section 11(6)(c) of the Act in as much as the Arbitrator has failed to perform the functions entrusted to him under the agreed procedure. 3. The respondents contend that the claim statement was filed before the Arbitrator without notice to the Railways and thereafter the Railways have filed their pleading before the Arbitrator after receipt of notice from the Arbitrator. 4. Admittedly, it was after this arbitration request was filed on 3.12.2007, that the Railways have placed their pleading before the Arbitrator. Arbitration Request No. 42/2007 -2- 5. Facts noticed above does not inspire to hold that a situation referable to Section 14(i) has arisen. That apart, the parties are at dispute as to whether any of the grounds referred to in clause (a) of sub Section (i) of Section 14 exists. If that were so, the jurisdiction is with the Principal Civil Court of original jurisdiction to decide an application under Section 14(2) in view of Section 2(1)(e) of the Act. 6. If the case is to be considered on the exclusive basis of Section 11(6)(c), the action taken by the Arbitrator does not lead to a situation whether it can be held that he has failed to perform the functions entrusted to him under the agreed procedure, though there is some substance in the case of the petitioner that the arbitration proceedings are being unduly delayed. But the materials are insufficient to conclude that the Arbitrator appointed as per Annexure A(8) has failed to perform the functions entrusted to him. In the result, this arbitration request is refused, however, clarifying that the Arbitrator and the Railways shall ensure that there is no further delay in concluding the proceedings and an Arbitration Request No. 42/2007 -3- award shall be passed at the earliest, at any rate, within a period of three months. THOTTATHIL B.RADHAKRISHNAN, JUDGE jp