IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 OP.No. 641 of 2002(B) --------------------- PETITIONER(S): --------------- M/S. PACE A REGISTERED FIRM REPRESENTED BY ITS PARTNER K. SHAKIR, 5/215 A6, V.G.S. BUILDING BYE PASS ROAD, CALICUT. BY ADV. SMT.M.R.SREELATHA RESPONDENT(S): --------------- 1. UNION OF INDIA, REP. BY EXECUTIVE ENGINEER, CALICUT, CENTRAL DIVISION, WEST HILL C.P.W.D., CALICUT. 2. CHIEF ENGINEER, CENTRAL PUBLIC WORKS DEPARTMENT OFFICE OF THE CHIEF ENGINEER, SOUTH ZONE - III, KENDRIYA SADAN, KORAMANGALA BABNGALORE - 34. 3. K.K. MUTREJA, ARBITRATOR, MINISTRY OF URBAN AFFAIRS & P.A. IVTH FLOOR, OLD C.G.O. BUILDING 101, M.K.ROAD, NERO MARINE LINES, MUMBAI-400 020. 4. DR.P.C.DANGAY, ARBITRATOR, GOVERNMENT OF INDIA, MINISTRY OF URBAN DEVELOPMENT & POVERTY ALLEVIATION VITH FLOOR, MIDDLE WING, JANAPATH BHAVAN, NEW DELHI. ADV. SRI.JOHN VARGHESE, ASSISTANT SG FOR R1 & 2 SRI. SUDHI VASUDEVAN, ACGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 641 of 2002 ORDER ON C.M.P.NO.1041 OF 2002 IN O.P.NO.641 OF 2002 CLOSED. 20.11.2008 SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF THE CLAUSE 25 OF THE AGREEMENT. EXT.P2: COPY OF THE STATEMENT FILED BY R1 BEFORE R4. EXT.P3: COPY OF THE AWARD DTD 29.5.2001 PASSED BY R4. EXT.P4: COPY OF CLARIFICATION DTED 17.7.2001. EXT.P5: COPY OF AGREEMENT DTD 10.9.2001. EXT.P6: COPY OF THE PROCEEDINGS DTD 29.11.2001 OF R2 APPOINTING R3. EXT.P7: COPY OF NOTICE DTD 4.12.2001 ISSUED BY R3. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.641 OF 2002 ---------------------------------------- Dated this the 20th day of November, 2008 JUDGMENT The petitioner is a Contractor, who undertook certain works on behalf of the 1st respondent. Disputes arose between the petitioner and the 1st respondent in respect of the contract, which was referred for arbitration, under the Arbitration and Conciliation Act, 1996, to the 4th respondent Arbitrator. Before the Arbitrator, the petitioner filed their claim. The 1st respondent raised a counter claim for an amount of Rs.2,40,188/-. After the arbitration proceedings, the 4th respondent passed Ext.P3 award dated 29.5.2001, in which an amount of Rs.75,000/- was awarded to the petitioner with interest. Subsequently, a doubt arose as to the future interest payable which was again taken up with the Arbitrator and the Arbitrator by Ext.P4 issued clarification dated 17.7.2001 regarding future interest also. Thereafter, by Ext.P5 agreement dated 10.9.2001, the petitioner and the 1st respondent mutually decided to settle all the claims in respect of the disputes referred to the Arbitrator, by paying an O.P.No.641/2002 2 amount of Rs.92,217/- to the petitioner in full and final settlement of the whole dispute. Thereafter, by Ext.P6 proceedings dated 29.11.2001, the 2nd respondent again appointed the 3rd respondent as an Arbitrator to decide and make an award regarding certain claims shown in the statement attached therewith, which are the very same claims in the counter claim filed by the 1st respondent before the 4th respondent Arbitrator. Pursuant thereto, the 3rd respondent Arbitrator issued Ext.P7 notice dated 4.12.2001 directing the petitioner to appear before the Arbitrator for further proceedings in the matter. The petitioner is challenging Exts.P6 and P7. 2. The contention of the petitioner is that the 2nd respondent had no jurisdiction to appoint another Arbitrator to decide the matter since the very same dispute had already been decided by the 4th respondent. As is evident from the list of claims attached to Ext.P6, the claims represent the counter claim made by the 1st respondent before the 4th respondent mentioned in Ext.P2. Under Section 33(4) and (5) of the Arbitration and Conciliation Act, if any party wanted the Arbitrator to make an additional arbitraral award as to claims O.P.No.641/2002 3 presented in the arbitraral proceedings, but omitted in the arbitraral award, the aggrieved party has to make a request to the same Arbitrator within thirty days from the receipt of the arbitraral award and the Arbitrator has to consider the request which if found to be justified, an additional arbitraral award shall be made by the Arbitrator within sixty days from the receipt of such request. In view of the said provision of law, the action of the 2nd respondent in appointing a new Arbitrator the 3rd respondent to decide the very same issue which has already been decided by the 4th respondent is without jurisdiction, is the contention raised. Further the petitioner would submit that in view of Ext.P5 settlement entered into between the petitioner and the 1st respondent in full and final settlement of all disputes referred to the Arbitrator, there is no scope for reference for any dispute to an Arbitrator. 3. I have considered the rival contentions in detail. 4. A counter affidavit has been filed on behalf of respondents 1 and 2 which is conspicuous by the absence of any answers to the petitioner's contentions. Admittedly, the dispute now referred to the 3rd respondent contained in Ext.P6 is the counter claim raised by the 1st respondent before the 4th O.P.No.641/2002 4 respondent, which has ended in Ext.P3 award. Therefore, if respondents 1 and 2 had any case that the 4th respondent had omitted to consider that claim, the course open to them was to approach the 4th respondent himself for making an additional award within the time limit prescribed in Section 33(4) of the Arbitration and Conciliation Act. Admittedly, that has not been done. Instead, by Ext.P6, the very same dispute had been referred for adjudication to a new Arbitrator namely, the 3rd respondent. The same is clearly against the provisions of the Arbitration Conciliation Act and therefore unsustainable. Even otherwise, after having chosen to settle the entire dispute with the petitioner by entering into Ext.P5 agreement in full and final settlement of claims between the parties, it is not open to the 2nd respondent to rake up the same again by appointing another Arbitrator. Therefore, Exts.P6 and P7 are clearly without jurisdiction. Accordingly, the same are quashed. The original petition is allowed as above. S. SIRI JAGAN, JUDGE Acd O.P.No.641/2002 5