IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 AR.No. 18 of 2011 APPLICANT M/S SOUTHERN WEIGHING INSTRUMENTS(P)LTD. (INCORPORATED UNDER COMPANIES ACT 1956) NO.10-10333 OF 1996, MICRO CATEGORY SMALL SCALE INDUSTRY, REP.BY ITS MANAGING DIRECTOR, V.VISWANATHAN, S/O LATE VELAYUDHAN ACHARI, 'ASHIANA', VASUNDHARA NAGAR(S), G.E.ROAD, BHILAI-3, CHHATTISGARH. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.U.P.BALAKRISHNAN SRI.K.R.AVINASH (KUNNATH) OPPOSITE PARETIES: 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE MINISTRY, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM-695001. 2. THE SECRETARY TO GOVERNMENT, TAXES (C)DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM-695001. 3. THE COMMISSIONER, COMMERCIAL TAXES DEPARTMENT, PUBLIC OFFICES BUILDING, TRIVANDRUM-695001. 4. KITCO LTD.,(ESTD BY IDBI & GOVERNMENT OF KERALA), REGISTERED OFFICE BUILDING, RAVIPURAM, M.G.ROAD, COCHIN-682016. R1 TO R3 BY GOVERNMENT PLEADER SRI.V.MANU THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Arbitration Request NO.18 OF 2011 ------------------------------------------------------ Dated this the 2nd day of August, 2011 O R D E R Annexure A1 agreement dated 7.8.2010 was entered into between the Government of Kerala and the applicant for installation of weigh bridges. As per the agreement, KITCO Ltd. is the Consultant for monitoring the supply, installing, testing and commissioning of weigh bridges at the various check posts in Kerala. 2. According to the applicant, weigh bridges were installed in several places and they could not be installed in other places since the land was not made available by the Government. According to the respondents, non-installation of the weigh bridges was not due to the fault on the part of the Government. There are various other areas of dispute. It is not necessary to refer to the same in this order. 3. Clause 8 of Annexure A1 agreement provides for arbitration clause. It reads as follows: A.R. NO.18 OF 2011 :: 2 :: “8. Any dispute arising between the parties should be referred to the arbitrator appointed as per the provisions of the Arbitration and Conciliation Act 1996.” 4. As per Annexure A2 petition dated 10th August, 2010, filed by the applicant before the Government of Kerala, the claims of the applicant were put forward. The applicant requested the Government to refer the dispute to arbitration in terms of the agreement. It would appear that the applicant filed W.P.(C) No.12580 of 2010 for a direction to the Government to consider the representation dated 16.3.2010 submitted by the applicant. In compliance with the directions in the judgment in W.P.(C) No.12580 of 2010, the Government considered the said representation by Annexure A3 order dated 4.2.2011. While passing the order, the Government took note of Annexure A2 petition dated 10.8.2010 also. It was stated in Annexure A3 order thus: “Since the party has preferred an arbitration petition under the provisions of the contract, it will not be appropriate to take decision on the grievances redressed in the petition unilaterally. Since A.R. NO.18 OF 2011 :: 3 :: contractual remedy is available to the party, the petition is disposed of to enable him to pursue the matter accordingly.” 5. In this Arbitration Request, the prayer is to appoint a sole arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 to adjudicate upon the claims and disputes between the parties. 6. A counter affidavit is filed on behalf of the second respondent, in which, various claims put forward by the applicant have been dealt with and answered. In paragraph 9 of the counter affidavit, it is stated thus: “Based on the directions contained in the judgment in WPC 12580/10, Government in G.O.(Rt.) No.83/11/TD dated 04.02.2011 has made clear that, since the contractor has preferred an arbitration petition under provisions of the contract, it will not be appropriate to take decision on the grievances raised in the petition unilaterally.” 7. There is no dispute that an arbitration clause is available in Annexure A1 agreement. There is also no dispute that a A.R. NO.18 OF 2011 :: 4 :: dispute arose between the parties. There is no case for the respondents that the Arbitration Request is not maintainable. 8. In these circumstances, the Arbitration Request requires to be allowed. The learned counsel for the applicant submitted that Sri.K.Ramachandran, Advocate (Retired District Judge), “Govind”, Neduvelil Lane, Ravipuram Road, Ernakulam, may be appointed as the arbitrator. The learned Government Pleader has no objection in appointing Sri.K.Ramachandran as the arbitrator. Accordingly, the Arbitration Request is allowed. Sri.K.Ramachandran, Advocate (Retired District Judge), “Govind”, Neduvelil Lane, Ravipuram Road, Ernakulam, is appointed as the arbitrator to resolve the disputes between the parties in respect of Annexure A1 agreement and the claims made by the parties against each other, on the basis of the agreement. The arbitrator would be entitled to fix the arbitration fee. (K.T.SANKARAN) Judge ahz/