IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 AR.No. 40 of 2006 ------------------------- APPLICANT: ------------------ M/S.P.C.THOMAS & CO., ENGG. CONTRACTORS, PUTHUSSERY HOUSE, MAMANGALAM, ERNAKULAM, KOCHI- 682 025, REP. BY ITS MANAGING PARTNER, P.C.THOMAS. BY MR.P.JACOB VARGHESE, SENIOR ADVOCATE, ADVS. MR.V.MANOJ KUMAR, MR.VIVEK VARGHESE P.J, MR.T.D.PARAMESWARAN UNNI. RESPONDENTS: ------------------------ 1. THE SUPERINTENDING ENGINEER, LAKSHADWEEP P.W.D., KAVARATHY, UNION TERRITORY OF LAKSHADWEEP. 2. THE EXECUTIVE ENGINEER, L.P.W.D., B&R. DIVISION, KALPENY, UNION TERRITORY OF LAKSHADWEEP. R1 & R2 BY MR.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN., THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON 17/07/2009, ALONG WITH A.R NO. 41 OF 2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- A.R.Nos.40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 & 52 OF 2006 ------------------------------------------- Dated this the 17th day of July, 2009 O R D E R 1.These arbitration requests were earlier ordered by this Court by the Hon'ble the Chief Justice on 10.1.2007, appointing a former Judge of this Court as the arbitrator. The Apex Court has set aside that judgment and the matter is remitted as per judgment dated 18.8.2008 on civil appeal No.5067/08 and connections. It has been directed that appointment ought to be made only in the contingencies contemplated in sub-section 6 of Section 11 and that though the Chief Justice or his nominee need not, as a mandate, appoint the arbitrator or arbitrators named in the agreement, due regard has to be given to the qualifications required by the agreement and other considerations. 2.Having heard learned counsel appearing in this case, it is noticed that the requirement as per clause 25 of the Clauses of Contract between the parties provides for settlement of AR.40/06 & con. cases Page numbers disputes by arbitration. The requirement is that when it reaches the stage of clause 25(ii), the disputes or difference shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, CPWD in charge of the work or if there is no such Chief Engineer, the administrative head of the said CPWD work. All that is, therefore, required is that the appointment has to be made by the Chief Engineer or the administrative head. It does not provide that the arbitrator should be either a Chief Engineer or a person with any particular qualification. The other provisions in that clause that no person other than a person appointed as arbitrator by the Chief Engineer or administrative head shall act as arbitrator and if, for any reason, that is possible, the matter should not be referred for arbitration is not enforcible since the failure of the Chief Engineer or the administrative head to make appointment of arbitrator in the contingency envisaged in clause 25(ii) cannot lead to such failure that could result in the nullity of the arbitration clause. AR.40/06 & con. cases Page numbers 3.In the aforesaid view of the matter, learned counsel for the parties were heard on the scope of the work in question and terms of the contract, to ascertain the choice to be made as regards appointment. The work is essentially civil contract work involving construction of buildings, stadiums etc. Having regard to the nature of the work, on suggestion by both sides, Mr.Justice K. John Mathew, former Judge of this Court is appointed as the sole arbitrator in all these cases to be assisted with technical expertise by Sri.G.Velayudhan Nair, B.Sc (Engg.), MIE, C.Eng, FIIBE, FIV residing at 48/600, VIGI, Keerthinagar, Elamakkara, Kochi. The arbitrator is also empowered to prescribe the fee for the assistance that would be rendered by the Engineer for the arbitration work. These arbitration requests are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.17/7.