Pre-conditions for invoking arbitration clauses may be deemed arbitrary and unconstitutional if they prevent access to judicial resolution, compelling parties to first seek amicable and DRC processes.

ORDER :

M.A. Abdul Hakhim, J.

1. This is an Application under S.11(6) of the Arbitration and Conciliation Act to appoint an Arbitrator under Clause 15.3 of Annexure A1 Agreement to resolve the dispute between the Applicant and the respondents arising out of the said Agreement.

2. The Application is opposed by the respondents by filing Counter Affidavit.

3. I heard the learned counsel for the Applicant, Sri. M.K. Sumod and the learned counsel for the respondents, Sri. V. Santharam.

4. The Applicant, through its holding Company M/S. Indo Thai Airport Management Services Pvt. Ltd., executed Annexure A1 Concession Agreement dated 19.07.2021 with the 2^nd respondent represented by the 1^st respondent. The Agreement was for providing ground handling services by the Applicant at Calicut Airport. The period of Annexure A1 Agreement was for a period of ten years. The period has not expired and parties have been still continuing with the Annexure A1 Agreement.

5. The 1^st respondent issued Annexure A14 Show Cause Notice dated 20.12.2021 to the Applicant alleging violation of Annexure A1 Agreement on account of non-achievement of Certificate of Operational Readiness (COD) as per the prescribed timeline, non- intimation of the Tariff Application submitted to AERA and non- intimation of the details of Escrow Account opened for the purpose of contract. The Applicant approached this Court by filing WP(C) No.2611/2022 challenging Annexure A14 Show Cause Notice and seeking extension for achievement of COD till such time COVID restrictions upon air travel are lifted completely. This Court disposed of the said Writ Petition as per Annexure A15 judgment directing the Applicant to submit explanation to Annexure A14 and directing the respondents to consider the same within a period of two weeks. The Applicant submitted A16 Reply to Annexure A14, mainly contending that the Applicant is entitled to get relaxation of conditions for achieving COD on account of the COVID pandemic, as the same has been declared as an event of Force Majeure by the Ministry of Finance. The 1^st respondent issued Annexure A22 Notice demanding Rs.7,31,46,240/- as damage charges on the allegations that the Applicant achieved COD after a delay of 272 days and that the conditions could not be relaxed on the ground of Force Majeure. The Applicant challenged Annexure A22 in this Court by filing WP(C) No.34051/2022 and the same was disposed of by this Court as per Annexure A25 judgment observing that the remedy of the applicant is to invoke Arbitration clause in Annexure A1 Agreement and not to seek relief under Article 226 of the Constitution of India. Thereafter, the 1^st respondent issued Annexure A26 dated 11.04.2023 calling upon the applicant to explain as to the non-payment of Rs.6,68,90,087/- towards the payment of MMG and Rs.7,31,46,240/- towards damage charges. The Request of the Applicant dated 18.08.2023 for referring the dispute to the Dispute Resolution Committee (DRC) was approved by the 1^st respondent, constituting the DRC at the station level by Annexure A29 dated 11.09.2023. In Annexure A29, the Applicant was demanded to pay the damage charges in accordance with clause 7.1.6 of the Annexure A1 Agreement subject to the condition that if the dispute is settled in favour of the Applicant, the 2^nd respondent shall refund the disputed dues as per the decision of the DRC or arbitration, without any interest. The Applicant as per Annexure A31 dated 10.02.2025 notified the