Vellapally Constructions, vs Adark Builders and Developers Pvt. Ltd., - Court Judgment

SooperKanoon Citationsooperkanoon.com/1708725
CourtKerala Orders High Court
Decided OnAug-12-2021
Case NumberAR/72/2018
JudgeHonourable Mr. Justice Devan Ramachandran
AppellantVellapally Constructions,
RespondentAdark Builders and Developers Pvt. Ltd.,
Excerpt:
in the high court of kerala at ernakulampresent the honourable mr. justice devan ramachandran thursday, the 12th day of august 2021 / 21st sravana, 1943 ar no. 72 of 2018 petitioner: vellapally constructions, post bag no.25, lions road, nagampadam, sh mount p.o., kottayam 686006, represented by its managing partner, jacob mathew, aged 58 years, son of n.m. jacob at vellapally house, collectorate p.o., kottayam, 686002. by advs. b.ashok shenoy thomas p.makil k.v.george p.n.rajagopalan nair p.s.gireesh riyal devassy respondent: adark builders and developers pvt. ltd., tc 1/1896, k.k buildings, kumarapuram, medical college p.o., thiruvananthapuram, 695011, represented by its managing director, thomas alexander, aged 61 years, son of eapen thomas, tc. 4/1542/1, kizhakkeveettil house, kavadiyar p.o., thiruvananthapuram, 695003. by advs. sri.philip t.varghese sri.thomas t.varghese smt.achu subha abraham smt.v.t.litha this arbitration request having come up for admission on 12.08.2021, the court on the same day passed the following:o r d e rthe petitioner has filed this arbitration request under the provisions of section 11(5) of the arbitration and conciliation act, 1996, (hereinafter referred to as ‘the act’ for short), seeking that certain disputes arisen between them and the respondent, based on annexure a3 agreement, be referred to a sole arbitrator, as is provided therein.2. the petitioner says that when disputesarose between the parties, which could not be resolved through amiable methods, they were constrained to issue annexure a9 letter to the respondent seeking appointment of an arbitrator and nominating a particular person for such purpose; but that the same was replied by therespondent, through annexure a10 letter, without acceding to such request, but controverting every claim raised by them. they say that, therefore, it is clear that disputes are subsisting between the parties and thus pray that this arbitration request be allowed.3. the afore submissions made on behalf of the petitioner by sri.b.ashok b shenoy, was controverted by sri.philip t. varghese - learned counsel for the respondent, by relying on the counter affidavit filed by his client, wherein, he showed me that every claim made by the petitionerin annexure a9 has been properly explained and opposed. he added that, in any event of the matter, even if any claim is to be made by the petitioner, it cannot exceed rs.53,90,828/- because the contract was for a 'fixed sum'. he, therefore, submitted that if this court is inclined to allow this arbitration request and to appoint an arbitrator, then the said authority may be directed to consider all these contentions of his client in its proper perspective.4. sri.b.ashok shenoy responded to the aforeby saying that his client does not stand in the way of every dispute, including as to whether the contract is for a 'fixed sum', to be referred to the arbitrator and he thus reiteratingly prayed that this arbitration request be allowed. taking note of the afore, this arbitration request is allowed in the following manner:(a) i nominate smt.bindu sreekumar, roomno.334, khcaa, golden jubilee chamber complex, high court, cochin - 31, as the sole arbitrator to adjudicate and resolve the disputes and differences between the parties to thiscase arising fromannexure a3 agreement.(b) the registry is directed to communicate a copy of this order to the learned arbitrator, within a period of two weeks from today and to obtain a statement of disclosure from her under section 11(8) read with section 12(1) of the arbitration and conciliation act, 1996.(c) once the disclosure statement isobtained from the learned arbitrator, the registry shall release the certified copy of this order, with a copy of the said statement appended to it, retaining the original of the same on the files of this case.(d) the fees of the arbitrator shall be governed by the fourth schedule to the arbitration and conciliation act, 1996.(e) in order to enable the arbitrator to commence the proceedings without delay, i direct the parties to mark appearance before her at 11 a.m. on 31.10.2021.sd/- rr devan ramachandran judge appendix of ar 72/2018 petitioner annexure annexure a1 true copy of partnership deed dated the petitioner firm. annexure a2 true copy of acknowledgment of registration of firm dated 12/03/1981 issued to petitioner firm by the registrar of firms, thiruvananthapuram.annexure a3 true copy of articles of agreement dated 18/03/2014 executed between petitioner and respondent. annexure a4 true copy of revised final bill no.vc/34/83/summer srv/5 & final/2015- 2016 dated 10/06/2016 submitted by petitioner to respondent. annexure a5 true copy of notice no. vc/35/1924/2016-2017 dated 15/02/2017 issued by petitioner to respondent. annexure a6 true copy of acknowledgement card signed by respondent. annexure a7 true copy of notice no. vc/35/2041/2016-17 dated 03/03/2017 issued by petitioner to respondent. annexure a8 true copy of acknowledgement card signed by respondent. annexure a9 true copy of notice dated 14/10/2017 issued by petitioner to respondent. annexure a10 true copy of reply notice dated petitioner. annexure a11 true copy of the bill of quantities dated 08/02/2014 forming part of annexure a3 agreement executed between petitioner and respondent. annexure a12 true copy of the running account bill (rab 1 & part) no. vc/33/75/summer sr- v/1 & part/2014-2015 dated 28/108/2014 annexure a13 true copy of the running account bill (rab 2 & part) no. vc/33/128/summer sr- v/2 & part/2014-2015 dated19/03/2015 annexure a14 true copy of the running account bill (rab 3 & part) no. vc/34/33/summer s r- v/3 & part/2015-2016 dated 19.08.2015 annexure a15 true copy of the running account bill (rab 4 & part) no. vc/34/58/summer s r- v/4 & part/2015-2016 dated 2.12.2015 annexure a16 true copy of e-mail dated 14.2.2015 sent by respondent to petitioner. annexure a17 true copy of e-mail dated 4.9.2015 sent by respondent to petitioner. annexure a18 true copy of e-mail dated 17.09.2015 sent by respondent to petitioner. annexure a19 true copy of e-mail dated 27.10..2015 sent by respondent to petitioner. annexure a20 true copy of the minutes dated 10.1.2016 of the meeting held between petitioner and respondent.
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943 AR NO. 72 OF 2018 PETITIONER: VELLAPALLY CONSTRUCTIONS, POST BAG NO.25, LIONS ROAD, NAGAMPADAM, SH MOUNT P.O., KOTTAYAM 686006, REPRESENTED BY ITS MANAGING PARTNER, JACOB MATHEW, AGED 58 YEARS, SON OF N.M. JACOB AT VELLAPALLY HOUSE, COLLECTORATE P.O., KOTTAYAM, 686002. BY ADVS. B.ASHOK SHENOY THOMAS P.MAKIL K.V.GEORGE P.N.RAJAGOPALAN NAIR P.S.GIREESH RIYAL DEVASSY RESPONDENT: ADARK BUILDERS AND DEVELOPERS PVT. LTD., TC 1/1896, K.K BUILDINGS, KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, 695011, REPRESENTED BY ITS MANAGING DIRECTOR, THOMAS ALEXANDER, AGED 61 YEARS, SON OF EAPEN THOMAS, TC. 4/1542/1, KIZHAKKEVEETTIL HOUSE, KAVADIYAR P.O., THIRUVANANTHAPURAM, 695003. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 12.08.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O R D E R

The petitioner has filed this Arbitration Request under the provisions of Section 11(5) of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as ‘the Act’ for short), seeking that certain disputes arisen between them and the respondent, based on Annexure A3 agreement, be referred to a sole Arbitrator, as is provided therein.

2. The petitioner says that when disputes

arose       between      the     parties,      which     could       not    be
resolved          through       amiable        methods,        they       were
constrained to            issue Annexure          A9 letter          to the
respondent         seeking       appointment      of     an    Arbitrator
and     nominating          a    particular       person        for       such
purpose;         but    that     the    same    was    replied       by    the

respondent, through Annexure A10 letter, without acceding to such request, but controverting every claim raised by them. They say that, therefore, it is clear that disputes are subsisting between the parties and thus pray that this Arbitration Request be allowed.

3. The afore submissions made on behalf of the petitioner by Sri.B.Ashok B Shenoy, was controverted by Sri.Philip T. Varghese - learned counsel for the respondent, by relying on the counter affidavit filed by his client, wherein, he showed me that every claim made by the petitioner

in Annexure A9 has been properly explained and opposed. He added that, in any event of the matter, even if any claim is to be made by the petitioner, it cannot exceed Rs.53,90,828/- because the contract was for a 'fixed sum'. He, therefore, submitted that if this Court is inclined to allow this Arbitration Request and to appoint an Arbitrator, then the said Authority may be directed to consider all these contentions of his client in its proper perspective.

4. Sri.B.Ashok Shenoy responded to the afore

by saying that his client does not stand in the way of every dispute, including as to whether the contract is for a 'fixed sum', to be referred to the Arbitrator and he thus reiteratingly prayed that this Arbitration Request be allowed. Taking note of the afore, this Arbitration Request is allowed in the following manner:

(a) I nominate Smt.Bindu Sreekumar, Room

No.334, KHCAA, Golden Jubilee Chamber Complex, High Court, Cochin - 31, as the sole Arbitrator to adjudicate and resolve the disputes and differences between the parties to this

CASE ARISING FROM

Annexure A3 agreement.

(b) The Registry is directed to communicate a copy of this order to the learned Arbitrator, within a period of two weeks from today and to obtain a Statement of Disclosure from her under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996.

(c) Once the Disclosure Statement is

obtained from the learned Arbitrator, the Registry shall release the certified copy of this order, with a copy of the said statement appended to it, retaining the original of the same on the files of this case.

(d) The fees of the Arbitrator shall be governed by the Fourth schedule to the Arbitration and Conciliation Act, 1996.

(e) In order to enable the Arbitrator to commence the proceedings without delay, I direct the parties to mark appearance before her at 11 a.m. On 31.10.2021.

Sd/- RR DEVAN RAMACHANDRAN JUDGE APPENDIX OF AR 72/2018 PETITIONER ANNEXURE Annexure A1 TRUE COPY OF PARTNERSHIP DEED DATED THE PETITIONER FIRM. Annexure A2 TRUE COPY OF ACKNOWLEDGMENT OF REGISTRATION OF FIRM DATED 12/03/1981 ISSUED TO PETITIONER FIRM BY THE REGISTRAR OF FIRMS, THIRUVANANTHAPURAM.

Annexure A3 TRUE COPY OF ARTICLES OF AGREEMENT DATED 18/03/2014 EXECUTED BETWEEN PETITIONER AND RESPONDENT. Annexure A4 TRUE COPY OF REVISED FINAL BILL NO.VC/34/83/SUMMER SRV/5 & FINAL/2015- 2016 DATED 10/06/2016 SUBMITTED BY PETITIONER TO RESPONDENT. Annexure A5 TRUE COPY OF NOTICE NO. VC/35/1924/2016-2017 DATED 15/02/2017 ISSUED BY PETITIONER TO RESPONDENT. Annexure A6 TRUE COPY OF ACKNOWLEDGEMENT CARD SIGNED BY RESPONDENT. Annexure A7 TRUE COPY OF NOTICE NO. VC/35/2041/2016-17 DATED 03/03/2017 ISSUED BY PETITIONER TO RESPONDENT. Annexure A8 TRUE COPY OF ACKNOWLEDGEMENT CARD SIGNED BY RESPONDENT. Annexure A9 TRUE COPY OF NOTICE DATED 14/10/2017 ISSUED BY PETITIONER TO RESPONDENT. Annexure A10 TRUE COPY OF REPLY NOTICE DATED PETITIONER. Annexure A11 TRUE COPY OF THE BILL OF QUANTITIES DATED 08/02/2014 FORMING PART OF ANNEXURE A3 AGREEMENT EXECUTED BETWEEN PETITIONER AND RESPONDENT. Annexure A12 TRUE COPY OF THE RUNNING ACCOUNT BILL (RAB 1 & PART) NO. VC/33/75/SUMMER SR- V/1 & PART/2014-2015 DATED 28/108/2014 Annexure A13 TRUE COPY OF THE RUNNING ACCOUNT BILL (RAB 2 & PART) NO. VC/33/128/SUMMER SR- V/2 & PART/2014-2015 DATED19/03/2015 Annexure A14 TRUE COPY OF THE RUNNING ACCOUNT BILL (RAB 3 & PART) NO. VC/34/33/SUMMER S R- V/3 & PART/2015-2016 DATED 19.08.2015 Annexure A15 TRUE COPY OF THE RUNNING ACCOUNT BILL (RAB 4 & PART) NO. VC/34/58/SUMMER S R- V/4 & PART/2015-2016 DATED 2.12.2015 Annexure A16 TRUE COPY OF E-MAIL DATED 14.2.2015 SENT BY RESPONDENT TO PETITIONER. Annexure A17 TRUE COPY OF E-MAIL DATED 4.9.2015 SENT BY RESPONDENT TO PETITIONER. Annexure A18 TRUE COPY OF E-MAIL DATED 17.09.2015 SENT BY RESPONDENT TO PETITIONER. Annexure A19 TRUE COPY OF E-MAIL DATED 27.10..2015 SENT BY RESPONDENT TO PETITIONER. Annexure A20 TRUE COPY OF THE MINUTES DATED 10.1.2016 OF THE MEETING HELD BETWEEN PETITIONER AND RESPONDENT.