Arbitral tribunal findings confirmed that both parties shared liability due to contributory negligence, emphasizing the significance of compliance with contract obligations and arbitration procedures.

ORDER :

N.ANAND VENKATESH, J.

1. This petition has been filed by the petitioner assailing the award passed by the Arbitral Tribunal dated 04.8.2018, as amended on 10.8.2018 and 10.9.2018, under Section 34 of the Arbitration and Conciliation Act , 1996 (for short, the Act).

2. Heard both.

3. The genesis of this case and the rough weather it faced even before the above petition was numbered have been succinctly captured in the order passed on 24.2.2022 and it reads as hereunder:

“Captioned 'Arbitration Original Petition' [hereinafter 'Arb OP' for the sake of convenience and clarity] was presented in this Court on 14.02.2022 under Section 34 of 'The Arbitration and Conciliation Act , 1996 (Act 26 of 1996)' [hereinafter 'A and C Act' for the sake of brevity, convenience and clarity] assailing an 'arbitral award dated 04.08.2018' [hereinafter 'impugned award' for the sake of convenience and clarity] made by a 'three member Arbitral Tribunal' ['AT']. To be noted, three member AT is constituted by one former Judge of Hon'ble Supreme Court of India and two former Judges of Hon'ble High Courts of Karnataka, Madras/Andhra Pradesh. Hon'ble former Judge of Supreme Court of India is presiding arbitrator. This Court is informed that there was a change of the member of AT post nomination but it is not necessary to set out those details in this proceedings owing to the scope and gamut of the case on hand. It is further to be noted that the impugned award is a unanimous award. It is further to be noted that there are two corrections to impugned award under Section 33 of A and C Act one dated 10.08.2018 and other dated 10.09.2018.

2. There is a sole claimant company and lone respondent company before AT. From hereon, for convenience, lone claimant before AT i.e., claimant company shall be referred to 'Puravankara' and lone respondent i.e., lone respondent company before AT shall be referred to as 'Simplex'.

3. Simplex has presented the captioned Arb OP in this Court.

4. Puravankara floated a tender dated 10.01.2006 for pile foundation qua a residential project which is construction of a superstructure which is to go by the name Purva Grand Bay, Marine Drive, Cochin. Simplex responded to this tender vide a quotation dated 18.01.2006 and clause 11 in Technical Notes on RCC driven precast segmental piles reads as follows:

'11. ARBITRATION:

Any dispute arising out of this contract shall be referred to Arbitration as per Provisions of ' Arbitration and Conciliation Act , 1996' and the venue of Arbitration shall be Chennai'.

5. Puravankara in and by communication dated 06.02.2006 bearing reference No.0729/ CH&C/P.GBAY/05-06/ENG-EIC which is in the nature of a work order accepted the afore-mentioned quotation.

6. Therefore, arbitration agreement between Puravankara and Simplex is now effectively the aforementioned clause 11 in the quotation and it is therefore necessarily an arbitration agreement by incorporation in the tender.

7. In other words to put it differently, the aforementioned clause 11 in the quotation of Simplex serves as arbitration agreement between the parties i.e., Puravankara and Simplex being Arbitration Agreement within the meaning of Section 2 (1)(b) read with Section 7 of A and C Act is learned counsel's say. To be noted, Mr.Thriyambak J.Kannan learned counsel of M/s.Kaitan & Co (Law Firm) for Simplex who has presented Arb OP is before this Court.

8. Aforementioned tender dated 10.01.2006 floated by Puravankara, quotation given by Simplex dated 18.01.2006 and acceptance of the same by Puravankara on 06.02.2006 (work order) shall be collectively referred to as 'said contract' for the sake of convenience and clarity.

9. Suffice to say (for now) that said contract ran into rough weather resu