IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 AR.No. 34 of 2008() ------------------- PETITIONER(S): -------------------- COCHIN BRIDGE INFRASTRUCTURE COMPANY LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT GAMMON HOUSE, VEER SAVARKAR MARG, PRABHADEVI, MUMBAI - 400 025. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.ANIL D. NAIR ADV.SRI.D.D.MADON. RESPONDENT(S): --------------- 1. GREATER COCHIN DEVELOPMENT AUTHORITY, A STATUTORY BODY CONSTITUTED UNDER THE PROVISIONS OF THE MADRAS TOWN PLANNING ACT, 1920, HAVING ITS PRINCIPAL OFFICE AT KADAVANTHRA, COCHIN-682 020. 2. GOVERNMENT OF KERALA, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. R1 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE SRI.P.K.MANOJKUMAR R2 BY GOVT. PLEADER SRI.M.P.SREEKRISHNAN THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- A.R.No.34 OF 2008 ------------------------------------------- Dated this the 29th day of June, 2009 O R D E R 1. The Government of Kerala had authorised GCDA through its Government Order No.G.O.(MS) No.20/98/PWD dated 24th March, 1998 for the construction of the new Mattancherry Bridge connecting Mattancherry, Palluruthy and Fort Cochin with Willingdon Island across the Mattancherry Canal at Kochi and its operation and maintenance through a Concessionaire on build, operate and transfer (“BOT”) basis. Pursuant to that, the GCDA entered into a contract with Gammon India Limited, the Concessionaire. That contract is Annexure A. The petitioner is a successor or permitted assignee of the Concessionaire. Later, Annexure B agreement was also entered into. With the passage of time, the Concessionaire made certain claims and issued Annexure O dated 14.12.2007 to the Chairperson of the GCDA. Annexure O2 remainder was sent. AR.34/08 Page numbers 2. Annexure A agreement provides Clause 35 to regulate resolution of disputes. Clause 35.1 deals with amicable resolution, failing which, Clause 35.2, which provides for arbitration, would become operational. Clauses 35.1 and 35.2 of Annexure A agreement read as follows: 35.1. Amicable Resolution (a) Save where expressly stated to the contrary in this Agreement, any dispute, difference or controversy of whatever nature howsoever arising under, out of or in relation to the Agreement including non completion of the Project Bridge between the parties and so notified in writing by either Party to the other party (the “Dispute) in the first instance shall be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Sub- clause (b) below. (b) In the event of any Dispute between the Parties either party may call upon the Consultant to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the AR.34/08 Page numbers Consultant or without the intervention of the Consultant, either Party may require such Dispute to be referred to the Chairman of GCDA and the Chairman of the Board of Directors of the Concessionaire, for the time given for amicable settlements. Upon such reference, the said two Chairmen shall meet not later than 7 (seven) days of the date of such request to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the said period or the Dispute is not amicably settled within 15 (fifteen) days of such meeting between the said two Chairmen, either Party may refer the dispute to arbitration in accordance with the provisions of Clause 35.2. (c) If the Dispute is not resolved as evidenced by the signing of the written terms of settlement within 30 (thirty) working days of the aforesaid notice in writing or such longer period as may be mutually agreed by the parties then the provisions of Clause 35.2 shall apply. 35.2 Arbitration 35.2.1. Any Dispute which is not resolved amicably as provided in Clause 35.1 shall be finally decided by AR.34/08 Page numbers reference to arbitration by a Board of Arbitrators appointed pursuant to Clause 35.2.2 below. Such arbitration shall be held in accordance with the Rules of Arbitration of the Indian Council of Arbitration and shall be subject to the provisions of the Arbitration Act. 35.2.2. There shall be a Board of three arbitrators of whom each party shall select one and the third arbitrator shall be appointed in accordance with the Rules of Arbitration. 35.2.3. The arbitrators shall issue a reasoned Award. 35.2.4. The venue of such arbitration shall be Kochi, Kerala State. 3. Clause 35.3 deals with the binding nature of the arbitral award and clause 36 provides that the agreement shall be construed and interpreted in accordance with law and governed by the laws of India and that the High Court of Kerala shall have jurisdiction over all matters arising out of or relating to that agreement. AR.34/08 Page numbers 4.According to the petitioner, since the matter was not amicably settled in terms of Clause 35.1 of Annexure A, they nominated Mr.Justice S.P.Bharucha, former Chief Justice of India as their arbitrator. Annexure Q2 is the acceptance of such nomination by Mr.Justice S.P.Bharucha. That decision was communicated to GCDA as per Ext.Q3 on 1.2.2008. Since the GCDA did not appoint its arbitrator, this application seeking measure under Sections 11(5) and 11(6) has been filed. 5.The first respondent GCDA has filed a counter affidavit. Exts.R1(a) and R1(b) are produced therewith. A reading of Ext.R1(b), which contained the minutes of the meeting, itself would disclose that the claims raised by the petitioner remain unanswered and the controversies yet to be resolved. Ext.R1 (a) shows that the GCDA took the stand that the matter has been referred to the Government of Kerala and is pending consideration at that end. AR.34/08 Page numbers 6.The State Government which is also impleaded in this request have also filed a counter affidavit. The stand taken is that there is no dispute to be resolved and that following Ext.R2(b) minutes, the petitioner was to give detailed calculation with proof of loss. 7.Along with its reply, the petitioner has placed on record its communication dated 10.10.2008, whereby it gave the split up details and its loss etc. 8. A reference to the aforesaid materials categorically show that there are disputes between the parties, which need to be resolved. Amicable settlement not having been possible, the parties have to take recourse to arbitration. 9.Having heard parties and having virtually concluded that an arbitrator has to be appointed by the GCDA also, in compliance with Clause 35.2.2, the respondents were required to place on record the identity of the arbitrator of AR.34/08 Page numbers their choice. Accordingly, the State of Kerala has placed a panel and the GCDA accedes to it. The first among the persons nominated in the panel submitted by the State Government, viz., Mr.Justice. P.Krishnamoorthy, former Judge of High Courts of Kerala and Karnataka is appointed as the arbitrator nominated by the GCDA and this arbitration request is ordered accordingly, enabling the learned arbitrators to proceed in terms of Clause 35.2 of Annexure A. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.29/6.