IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 AR.No. 22 of 2008() ------------------- PETITIONER --------------------------- TANDEM INFOTECH (P) LTD., REPRESENTED BY ITS CHAIRMAN N.GOPALAKRISHNAN, 'SAI KRISHNA', SANKAR ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS: ------------- 1. BHARAT SANCHAR NIGAM LTD., REPRESENTED BY ITS PRINCIPAL GENERAL MANAGER, BSNL BHAVAN, UPPALAM ROAD, THIRUVANANTHAPURAM. 2. THE CHIEF ACCOUNTS OFFICER (TR II), BSNL, LIC BUILDING, PATTOM, THIRUVANANTHAPURAM. ADDITIONAL RESPONDENTS 3. THE TAHSILDAR REVENUE RECOVERY THIRUVANANTHAPURAM Additional respondent suo motu impleaded vide order dated 27-6-2008 BY ADV. SRI.K.KESAVANKUTTY, SC, BSNL FOR R1 & R2 GOVT. PLEADER SRI.BASANT BALAJI THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.R.No.22 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of July, 2008 ORDER In this application under Section 11(5) of the Arbitration and Conciliation Act, the request of the applicant is that an Arbitrator be appointed as provided in clause 12.1 of Annexure A agreement between the parties for the purpose of settling the disputes and differences which have arisen between the petitioner company and the respondents. A detailed statement was filed by the standing counsel for the respondents which was followed by a detailed additional statement. The applicant has filed a reply affidavit. 2. I have heard Sri.Manu.V., learned counsel for the applicant and Sri.K.Kesavankutty, standing counsel for the first respondent. Sri.Manu would draw my attention to clause 12.1 of Annexure A and point out that the said clause is a valid arbitration clause. My attention was drawn by the learned counsel to Annexure C request and it was submitted that inspite of the arbitration clause having been duly invoked, the first respondent has not so far appointed the Arbitrator. A.R.No.22/08 2 3. Sri.K.Kesavankutty, standing counsel for the first respondent would resist the submissions of Sri.Manu very strongly. Sri.Kesavankutty submitted that there are no disputes or differences of opinion surviving between the parties for resolution in arbitration proceedings. He would submit that the applicant issued a cheque for a sum of Rs. 4,60,959/- in full and final settlement of his liabilities to the first respondent. The cheque was issued by him willingly to the Tahsildar who attempted to recover the amount from him in revenue recovery proceedings. Sri.Kesavankutty also submitted that arbitration clause has been invoked by the petitioner only some two years after the requisition for revenue recovery proceedings was given by the BSNL. The conduct of the applicant in moving this court at this distance of time is without any bonafides. Sri. Kesavankutty further submitted that the petitioner had been moving various fora simultaneously. He moved the Government, he moved the Land Revenue Commissioner and he moved this court. He alleged that the petitioner is guilty of having suppressed material facts. Sri.Kesavankutty also submitted that the petitioner is enjoying the amounts which are legally due to the A.R.No.22/08 3 BSNL without liability to pay any interest. 4. I have considered the rival submissions in the light of the documents placed on record by the parties. The submission of Sri.Kesavankutty that the conduct of the applicant in approaching this court years after the first respondent had made the requisition for initiation of revenue recovery proceedings is not bonafide cannot be said to be without any force. So also Sri.Kesavankutty's submission that the petitioner had been moving various fora simultaneously cannot be described as totally incorrect. But at the same time, to a specific question put by me, Sri.Kesavankutty submitted that the respondents do not have a case that the petitioner's request for arbitration is barred by limitation. It is beyond dispute that clause 12.1 of Annexure A is a valid arbitration clause which has been duly invoked by the petitioner by issuing Annexure C. I am finding it extremely difficult to accept the contention of the BSNL that the cheque in question was given by the applicant to the Tahsildar in full and final settlement of his admitted dues to the first respondent. The cheque was given as a post dated cheque for escaping from the coercive process initiated under the A.R.No.22/08 4 Revenue Recovery Act. In that view of the matter, I am inclined to allow the arbitration request. At the same time, I notice an element of genuineness in the grievance voiced by BSNL that the petitioner's objective is to delay payment of the amounts without any liability to pay interest. In my opinion, the judgment of the Supreme Court in Secretary, Irrigation Department, Government of Orissa and Others v. G.C.Roy ( 1992(1) Supreme Court Cases 508) will enable the Arbitrator to award interest on the award amount even in the absence of a contract between the parties on the principle that to make up for the loss on account of the delay in payment of the amount legally due, interest can be awarded. The result is that allowing the arbitration request I direct the first respondent to appoint an Arbitrator for settling all the disputes between the parties which are subject matter of this arbitration request strictly in accordance with clause 12.1 of Annexure A. The arbitrator will permit the applicant to submit claim statement so that the applicant can raise his claims specifically. It is needless to mention that the arbitrator will permit the respondents to file statements through which A.R.No.22/08 5 they can raise counter claims, if any. The Arbitrator will enter on reference and pass award at the earliest. It is open to the petitioner to seek necessary orders from the Arbitrator regarding the encashment of the cheque which has been handed over to the Tahsildar in the revenue recovery proceedings. PIUS.C.KURIAKOSE JUDGE sv. A.R.No.22/08 6