IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Con.Case(C).No. 1333 of 2008(S) ------------------------------- AGAINST THE ORDER IN AR.43/2007 .................... PETITIONER(S): PETITIONER ------------------------- M/S. PRIME HABITATS PVT. LTD., V.K. COMPLEX, FORT ROAD, KANNUR - 670 001, REPRESENTED BY ITS DIRECTOR RAVI GUPTA. BY ADV. SRI.RAJESH NAMBIAR RESPONDENT(S): 2ND RESPONDENT ----------------------------- RAKESH CHOPRA, FATHERS NAME AND AGE NOT KNOWN TO THE PETITIONER. GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, CHENNAI -3. ADV. SRI.R.SATISH KUMAR FOR R1 THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - C.C.C.NO.1333/08 IN A.R.NO.43/07 & I.A.No.15/08 IN A.R.No. 43/2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2008 JUDGMENT The allegation in the contempt of court case is that in gross violation of the directions in Annexure A judgment, the respondent ( respondent No.2 in A.R. No. 43/07) has willfully disobeyed those directions. He has thus committed contempt of court punishable under Sections 11 and 12 of the Contempt of Courts Act 1971. Under Annexure A judgment, I had directed the petitioner to select two names mentioned in paragraph 6 of the statement filed by the standing counsel for the respondents and inform the second respondent at the earliest and at any rate within ten days of receiving copy of Annexure A, and the second respondent was directed to appoint one out of those two names, as a substitute for the original presiding arbitrator. The original Tribunal subject to substitution as above was directed to adjudicate the reference in accordance with law. The petitioner's allegation is that though under Annexure B, he informed the C.C.C.NO.1333/08 IN A.R.NO.43/07 & I.A.No.15/08 IN A.R.No. 43/2007 2 respondent of his choice within the time allowed by the court and alerted the respondent by issuing Annexure C, the respondent has not taken any action. 2. I.A.No. 15/08 is an interlocutory application filed by the respondent in the arbitration request seeking a direction to the applicant in the arbitration request to select two names out of the four names from the fresh panel shown in paragraph 7 of the affidavit or in the alternative order appointment of three arbitrators directly from among the fresh panel submitted nominating one among them as the Presiding Arbitrator. The reason stated in paragraph 6 of the affidavit is that three out of the four officers mentioned in the list considered while passing Annexure A order are now not working with Southern Railway and only Sri.A.K. Sinha, CE/Works/HQ/MAS is working in Southern Railway. Therefore at paragraph 7 of the affidavit including Sri.A.K.Sinha, a fresh panel is suggested containing the names of the following persons: C.C.C.NO.1333/08 IN A.R.NO.43/07 & I.A.No.15/08 IN A.R.No. 43/2007 3 1) Sri.A.K.Sinha 2) Sri.B.Narasimha Rao 3) Sri.N.C. Sharda and 4) Smt.Meera Nageswaran 3. Having considered the submissions addressed before me by Sri.Rajesh Nambiar, learned counsel for the petitioner in the contempt of court case and also by Sri.R. Sathish Kumar, learned counsel for the respondent in the contempt of court case, I am of the view that both the contempt of court case and the I.A. can be disposed of issuing the following directions; The respondents in the contempt of court case shall immediately constitute fresh Arbitral Tribunal in which Sri.Rajendra Prasad and Sri.T.M.Sreedhar will continue to be members and Sri. N.C. Sharda, or Sri.B.Narasimha Rao shall be included as a member. The respondent can appoint any one of these three members as the Presiding Arbitrator. The fresh Tribunal to be constituted shall adjudicate also on the compensation to be paid to the applicant for the alleged delay which is C.C.C.NO.1333/08 IN A.R.NO.43/07 & I.A.No.15/08 IN A.R.No. 43/2007 4 allegedly attributable to the Railways by way of interest at the rate of 18% per annum as claimed in paragraph 10 of the counter affidavit submitted by the respondent in I.A.No. 15/08. PIUS.C.KURIAKOSE JUDGE sv. C.C.C.NO.1333/08 IN A.R.NO.43/07 & I.A.No.15/08 IN A.R.No. 43/2007 5