Paulose George Construction Co. (P) LTD. vs. Bharat Petroleum Corporation LTD. - Kerala High Court, 18 September 2020

Dated this the 18th day of September 2020 This Arbitration Request is filed under Section 11(6)(a) of the Arbitration and Conciliation Act 1996. The opposite parties awarded a contract to applicant covered by Annexure-A1 and A2 purchase orders. There arose disputes and differences between the parties relating to completion of work as well as on amount payable to applicant. Clause 91.A of the general conditions of contract, which is part of Annexure-A1, agreement entered into between petitioner and the 1st opposite parties, reads as follows : “91.A a) Any dispute or difference of any nature whatsoever, any claim, cross-claim, counter claim, or set off of the Company against the contractor or regarding any right, liability, act, omission or account of any of the parties hereto arising out of, or in relation to this agreement shall be referred to and finally resolved by sole arbitrator, who shall be appointed by Director (Refinery) of BPCL as per the procedure given in sub-clause (b) given herein below. b) Procedure for appointing the sole arbitrator : A party wishing to commence an arbitration (the claimant) shall file with the Director (refinery) of BPCL a notice of arbitration which shall comprise : I. a demand that the dispute be referred to arbitration ; ii. a reference to the arbitration clause or the arbitration agreement that is invoked and a copy of it ; iii. a reference to the contract out of or in relation to which the

A.R.No.34/2020 3 dispute arises and where possible, a copy of it ; iv. a brief statement describing the nature and circumstances of the dispute specifying the relief claimed and where possible, an initial qualification of the claim amount; v. any other details, which the claimant wishes to refer and rely upon. Upon receipt of the above notice of arbitration, the Director (Refinery) of BPCL shall appoint the sole arbitrator as per the provisions of the Arbitration and Conciliation Act, 1996. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”

After several correspondence between the parties the applicant had, in Annexure-A7 letter, raised his claims for payment and requested the second respondent that there shall be a joint appointment of independent sole arbitrator. Thereupon, the fourth Opposite Party sent Exhibit-A8 letter, disputing the demands of petitioner and also intimating the incompetence to appoint sole arbitrator in view of the amended provisions contained in Arbitration and Conciliation Act, 1996. Thereupon the applicant has filed this Arbitration request, simultaneously raising the claims/demands against the the opposite party.

The Opposite parties have filed an objection raising their claims while admitting the provision for resorting to arbitration.

Having considered the pleadings and contentions on both sides and the provisions contained in Clause 91.A of

A.R.No.34/2020 4 Annexure-A1, it is seen that there is no dispute over the provision for appointment of a sole arbitrator. Therefore this Arbitration Request is allowed. Justice K.T.Sankaran, former Judge of this Court, residing at `Savithri', Shenoy Road, Kaloor, Kochi-682 017, is appointed as the Arbitrator to resolve the disputes between the parties. The applicant shall obtain a disclosure statement from the Arbitrator as provided in section 11(8) of the Arbitration and Conciliation Act, 1996, original of which shall be retained by the Registry. Certified copy of this order need be issued only on production of the disclosure statement. A copy of the same shall be appended to the certified copy of this order. P.V.ASHA, JUDGE csl

A.R.No.34/2020 5 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A1OF PURCHASE ORDER NO.45059 48915 FOR WORKS VALUED RS.3,86,98,431/- EXCLUDING SERVICE TAX ETC. ANNEXURE A2OF PURCHASE ORDER NO.45065 43117 FOR COMPLIANCE WITH GST. ANNEXURE A3OF CERTIFICATE OF CONSULTANT ENGINEER OF THE OPPOSITE PARTIES FOR PAYMENT OF RS.1,75,97,871/-. ANNEXURE A4OF AUTHORIZATION OF THE CONSULTANT ENGINEER FOR EXTENSION OF INTENDED COMPLETION PERIOD BY 71 DAYS FROM 5.8.2017 TO 14.10.2017. ANNEXURE A5OF REPLY TO THE OPPOSITE PARTIES HIGHLIGHTING ABSENCE OF ANY INSTRUCTION FOR REMOVAL OF THE CUT PIECES OF TREE LOGS STACKED. ANNEXURE A6OF MINUTES OF THE MEETING. ANNEXURE A7OF NOTICE DEMANDING PAYMENT OF RS.2,17,27,668.79 UNPAID VALUE OF WORKS CARRIED OUT INVOKING ARBITRATION CLAUSE. ANNEXURE A8OF REPLY INTIMATING INCOMPETENCE TO APPOINT SOLE ARBITRATOR. ANNEXURE A9 PANEL OF CHIEF ENGINEERS FOR APPOINTMENT OF SOLE ARBITRAL TRIBUNAL.