V. Ramkumar, J.

1. In this appeal filed under S.37(1)(a) of the Arbitration and Conciliation Act, 1996 ("the Act" for short), the appellant i.e. the Board of Trustees, Port of Cochin, challenges the order dated 05.09.2011 passed by the District Judge, Ernakulam dismissing on merits OP (Arbitration No. 505/2011) filed by the appellant under Section 9 of the Act.

THE PARTIES

2. The appellant is a major Port constituted under the Major Port Trusts Act, 1963 having its office at Willingdon Island, Kochi -I and is represented by its Chairman Sri. Paul Antony. The first respondent i.e. Jaisu Shipping Company Private Ltd. is company incorporated under the Companies Act, 1956, having its registered office at Kewal Remany House, Dinshaw Building Road, Nedar Custom House, Kandala Port, Gujrat 370 220 and having a branch office at Link Horizon, Marine Drive, Ernakulam. The additional second respondent i.e. Jaisu Dredging and Shipping Ltd., Gujrat got itself impleaded as per the order dated 04.10.2011 in IA 2557/2011 and claims ownership rights over the dredgers and equipments in respect of which the appellant sought a conditional order of attachment.

3. As per the impugned order the learned District Judge dismissed on merits the original petition filed by the appellant under Section 9 of the Act. Hence, this appeal.

4. We heard Sr. Advocate Sri. Joseph Markos, the learned counsel appearing for the appellant and Sr. Advocate Sri. K. L. Varghese, the learned counsel appearing for the first respondent and Advocate Sri. Millu Dandapani, the learned counsel appearing for the 2nd respondent.

THE BACKGROUND FACTS

5. Before analysing the rival contentions of the parties it may be necessary to have an insight into the background facts. The following is the chronological narration of the undisputed facts leading to the final hearing of this appeal: - 31.01.2005 The appellant (Board of Trustees, Port of Cochin) executed an agreement with India Gateway Terminal (P) Ltd., (IGTPL for short -a subsidiary of Dubai Port World) for development, operation and management of an International Container Transhipment Terminal (ICTT) at Vallarpadom in Kochi. As per the terms of the agreement the appellant undertook to carry out capital dredging (fresh dredging) of a Berth Basin and approach channels so as to provide 14.5 meter draft (depth) required for 8000 +TEU capacity container vessels. IGTPL, however, insisted subsequently that in order to enable them to meet their project cargo requirements an interim depth at the basin area should be achieved and that they will themselves undertake the work of dredging for that purpose from December 2008 till July 2009. The work so undertaken by IGPTL was the dredging of the channel in front of the quay and retaining wall and in between the piles.15.12.2008 Appellant entered into Ext. A1 Agreement No. 52 of 20082009 (containing General Conditions of Contract) with the first respondent (Jaisu Shipping Company Ltd.) for carrying out the work of "capital dredging for deepening and widening of outer channel of Group B of Cochin Port Trust, deepening of inner channel of Group B leading to ICTT and creating a basin in front of ICTT for providing sufficient depth required for 14.5 m. draft container vessels and maintenance dredging for maintaining specified depths in the Group C channels of Cochin Port Trust during the period from 01. 09.2008 to 31.12.2010 by deploying Trailing Suction Hopper Dredgers (TSHDs) of suitable cap10 to 17acity and other type of dredgers, if required, and carrying out survey works as stipulated. "The length of the proposed outer channel from the channel mouth till Buoy 10 was 13.2 kms. and the length of the proposed inner channel from Buoy 10 to the basin was 1.8 kms. The contract amount was Rs.525.50 crores. The appellant termed as the "employer" and the first respondent termed as the "contractor" were the "parties" to the contract. The contract period as originally fixed was from 01.09