IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 AR.No. 30 of 2008() ------------------- PETITIONER : ----------------- T.V.KUNJU KRISHNAN, S/O. LATE VELUTHA KUJU SUDHALAYAM, CHERIYAZHEEKAL P.O. KARUNAGAPPALLY KOLLAM DISTRICT. BY ADV. SRI.S.SHARAN RESPONDENTS: ------------- LAXMI CRANES & TRALLERS PVT. LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT. HAVING ITS REGISTERED OFFICE AT BUILDING NO. VII/602 A, KUNDANNUR, MARADU – 682 304 REP. BY AUTHORISED SIGNATORY, P.A. SANKARA NARAYANAN, S/O. LATE P.N.AYYAPPAN EZHUTHACHAN, AGED 49. BY ADV. SRI.S.SREEKUMAR THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE,J. ------------------------ A.R.No.30 OF 2008 ------------------------ Dated this the 2nd day of September, 2008 O R D E R Sri.P.Somachoodan Nair, the arbitrator has forwarded his remarks. Quoting from the written statement filed by the respondents before him, he points out that it has contended by the respondent that the arbitrator has no jurisdiction to entertain the counter claim. He has remarked that in view of the stand taken by the respondent through the written statement, he observed during the course of the trial that the maintainability of the claim is doubtful. He has also remarked that if the counter claim is also to be enquired into, he may require at least one more year than what is presently expected for completing the proceedings and making his award. He has lastly requested for appropriate direction from this court on the question as to whether the petitioner should be permitted to raise counter claim and whether the counter claim should be enquired into by him. 2. Thus the submission of Sri.P.Shanthalingam, the A.R..No.30/2008 2 learned senior counsel that the arbitrator became diffident to entertain the counter claim submitted by him in view of the express terms of the reference given to the arbitrator by this court is found to be correct. 3. Sri.S.Sreekumar, the learned counsel for the respondents would draw my attention to the definition given to the term 'arbitration agreement' in section 2(b) and also in Section 7(1) of the Arbitration and Conciliation Act. He drew my attention also to Section 11(8) of the Act. He would cite the judgment of the Constitution Bench in SBP Company v. Patel Engineering Ltd. ( 2005 (8) SCC 618). He submitted that the present request is not at all maintainable under Section 11(8) since it was for the petitioner to have specifically raised a counter claim earlier and sought a direction that the arbitrator appointed then considers the counter claim also. The above submission of the learned counsel, in my opinion, is too technical for receiving acceptance. Clause 10 of Annexure I in my opinion is vide enough to take counter claims raised by the petitioner. Annexure II through its last sentence will show that the petitioner raised claim for excess payment, loss and damages A.R..No.30/2008 3 sustained on account of the defective crane used for carrying out the work. Sri.Santhalingam would submit that in view of the very first paragraph in Annexure III order of this court the arbitrator is bound to consider the counter claim also. Sri.Sreekumar resisting the above submission, submitted that the judicial order appointing the arbitrator is Annexure III and its operative portion will clearly show the arbitrator has been appointed only for settling disputes enumerated in the arbitration request filed by the respondent. Sri. Sreekumar lastly submitted that the counter claim has, at any rate ,become barred by limitation. 4. Having considered the submissions addressed at the Bar, I am of the view that technicalities should be left alone and on considerations of justice, the arbitrator should be specifically directed to entertain the counter claim submitted by the petitioner and to adjudicate all the claims including the claim raised by him through the last sentence of Annexure II. The Arbitration Request, is accordingly, disposed of issuing the following directions ; i). Sri.P.Somachoodan Nair, the arbitrator already A.R..No.30/2008 4 appointed is directed to entertain the counter claim filed by the petitioner. For the purpose of limitation, as provided under Section 3 of the Limitation Act and Section 43 of the Arbitration & Conciliation Act, the date of raising of the counter claim should be taken as the date on which the petitioner filed written statement before the arbitrator first, raising the counter claims. ii). The arbitrator should decide all the disputes including the dispute as to whether the counter claim is barred by limitation. iii). The arbitrator will go on with the proceeding at the fastest possible pace and make and publish award at his earliest. (PIUS.C.KURIAKOSE,JUDGE) dpk