IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 AR.No. 32 of 2010() ------------------- PETITIONER : --------------------- P.K.RAMACHANDRAN S/O.P.K.KARUNAKARAN NAIR, CONTRACTOR, KUPPAKAPPILLY MOLATH, METHALA PO, PERUMBAVOOR, ERNAKULAM DISTRICT. BY ADV. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE SRI.S.MANU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, IRRIGATION DEPARTMENT THIRUVANANTHAPURAM. 2. THE SUPERINTENDING ENGINEER KALLADA IRRIGATION PROJECT RIGHT BANK CIRCLE, KOTTARAKKAR. GOVERNMENT PLEADER SRI.K.V.MANOJ KUMAR FOR R1 & R2 THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------ A.R.No.32 of 2010 ------------------------------------ Dated this the 17th day of January, 2011 O R D E R The petitioner was awarded the work of Kallada Irrigation and Tree Crop Development Project Right Bank Canal System - Formation of Chavara Distributory - Part III from chainage 2000 to 3500 m. and from chainage 6010 to 6210 m. including canal structures and cross drainage works under the agreement No.14/SE/ECQ/85-86 dated 30.10.1985. Disputes arose between the parties to the contract. The arbitration clause contained in the agreement was invoked. K.Krishnankutty, Chief Engineer, Project III, Kallada, Kottarakkara was appointed as the sole arbitrator. The arbitrator passed the first award dated 19.1.1992 and another arbitration award No.ARB/SEIRBSC/1/93 dated 20.9.1994. The awards mentioned above were made rule of the court as per O.P.(Arb.) No.107/1992 and O.P.(Arb.) AR No.32/2010 2 No.59 of 1994 on the file of the court of the Subordinate Judge of Kollam. The State and the Superintending Engineer challenged the awards and the judgments in the O.P.(Arb.) Nos.59 of 1994 and 107 of 1992 in M.F.A.Nos.230 of 1998 and 844 of 1997. Those appeals were disposed of as per Annexure A2 judgment dated 17th October, 2003. The order in O.P.(Arb.) No.107 of 1992 was confirmed by dismissing M.F.A.No.230 of 1998 while the order in O.P. (Arb.) No.59 of 1994 was set aside by allowing M.F.A.No.844 of 1997. The Division Bench held that the matter has to be remitted back and a fresh arbitrator has to be appointed in terms of clause 52 of the arbitration agreement. 2. Annexure A2 judgment was challenged before the Supreme Court by the petitioner herein, but the appeals were dismissed. 3. As per Annexure A4 notice, the petitioner requested the Chief Engineer to send a panel of three Superintending Engineers or higher to select one among them as the sole AR No.32/2010 3 arbitrator. Later, Annexure A5 notice was issued by the petitioner in which he suggested names of three persons and requested to appoint one among them as the arbitrator. Later, Annexure A6 notice was sent by the petitioner appointing one among the persons mentioned in Annexure A5 as the arbitrator. It is stated that no replies were sent by the respondents. However, the arbitrator appointed by the petitioner was not willing to accept the appointment. 4. In these circumstances, the petitioner has approached this Court for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act. 5. The arbitration clause is produced as Annexure A1. There is no dispute that there is an arbitration clause binding on the parties. The arbitration clause also provides that the arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory modification thereof. It is not in dispute by any of the parties that the arbitration proceedings commenced when the Act of AR No.32/2010 4 1940 was in existence and that in view of the specific provisions of the arbitration clause, now the proceedings are to be taken under the Arbitration and Conciliation Act, 1996. 6. The learned counsel for the petitioner filed a memo containing the panel of three arbitrators. The learned Government Pleader submitted that instructions received indicates that the Government have no objection in appointing any one of the following three persons : 1. I.V.Rajagopalan Superintending Engineer National Highway North Circle, Kozhikode. 2. A.P.Balan Superintending Engineer M.V.I.P. Circle Muvattupuzha, Ernakulam. 3. K.Soman Superintending Engineer P.W.D. Roads & Bridges South Circle, Thiruvananthapuram. 7. A.P.Balan is a common name suggested by both the parties and therefore, there could be no objection in AR No.32/2010 5 appointing Sri.A.P.Balan as the arbitrator. Accordingly, the Arbitration Request is allowed. Sri.A.P.Balan, Superintending Engineer, M.V.I.P. Circle, Muvattupuzha, Ernakulam, is appointed as the arbitrator to resolve the disputes between the parties mentioned above. K.T.SANKARAN JUDGE csl