IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 AR.No. 17 of 2008() ------------------- APPLICANT ----------------------------- C.RAGHAVAN, AGED 52 YEARS, S/O. LATE C.KUMARAN NAIR, SREEKUMAR BUILIDNGS SOUTH CHALAKKUDY 680 307, TRICHUR DISTRICT. BY ADV. SRI.K.S.BABU SMT.N.SUDHA OPPOSITE PARTIES/ RESPONDENT(S): --------------- 1. THE UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI. 2. GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI-600 003. 3. CHIEF ENGINEER,(CONSTRUCTION) SOUTHERN RAILWAY, EGMORE, CHENNAI-8. 4. THE DEPUTY CHIEF ENGINEER (CONSTRUCTION) SOUTHERN RAILWAY, KZHIKODE 673 001. ADV. SRI.B.JAYASANKAR, SC, RAILWAYS THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - Arbitration Request No. 17 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2008 JUDGMENT The Constitution Bench of the Supreme Court has settled the law regarding the nature and scope of the proceedings under Sections 11 (4), 11(5) and 11(6) before the Chief Justice or the designated Judge by its judgment in SBP & Co. v. Patel Engineering Ltd. (2005(8)SCC 618). Recently a Bench of two Judges of the Supreme Court in National Insurance Co. Ltd v. Boghara Polyfab (P)Ltd ( 2008(4)KLT SN 52( C.No.48)SC) after analysing the judgment of the Constitution Bench has ruled under its judgment in SBP & Co.'s case, that the Constitution Bench has identified and segregated the preliminary issues which may arise for consideration in an application under Section 11 into three categories. Included in Category No.1 are issues which the Chief Justice or his Designate is bound to decide. Category No. 2 are issues which the Chief Justice or the Designate can decide and Category No.3 are issues which cannot be decided by the Chief Justice or his Designate and have to be left to AR.No.17/08 2 be decided by the Arbitral Tribunal. 2. According to me, the issue whether as contended by the respondents, the petitioner received the amounts in full and final settlement and is entitled to claim more amounts in view of the no claim certificate is an issue coming under the second category. The contention of the respondent that some of the claims fall within the excepted matters is an issue falling within the third category. 3. Considering issues falling within the first category whether there is an Arbitration agreement and whether the circumstances justifying invocation of that agreement have been satisfied. I hold that there is an arbitration agreement and circumstances are made out for invoking the agreement. As for the issues falling within categories 2 and 3, I am of the view that those issues should be decided by the Arbitral Tribunal. 4. The petitioner has submitted a panel containing names of three retired District Judges. The respondent has submitted a panel containing the names of two retired District Judges. As regards the learning and integrity of these five persons, there is no controversy at AR.No.17/08 3 the Bar. I feel that the Arbitration Request can be allowed and that the person named third in the panel submitted by the petitioner can be appointed. Accordingly, the Arbitration Request will stand allowed. Sri. Christhudas Stephenson , retired District and Sessions Judge, “Grace Villa”, Maradu P.O., Kochi - 682 304, is appointed as Arbitrator for adjudicating and settling the issues and disputes which have arisen between the parties. The Arbitrator will decide whether the satisfaction certificate relied on by the respondent is valid and binding. The Arbitrator will also decide whether the contention of the respondent that the claims fall within excepted items. All claims and counter claims arising from the pleadings of the parties will be adjudicated and settled by the Arbitrator. The Arbitrator will enter on reference and make and publish his award without undue delay. PIUS.C.KURIAKOSE JUDGE sv. AR.No.17/08 4