A contractual clause that imposes a limitation period shorter than the statutory period is unenforceable and void.

ORDER

The applicant was awarded the work of “Rectification of compound wall, diversion of drainage at old main gate, over slab for drainage and development of site near Silver Jubilee Building at NIIST Campus, Thiruvananthapuram”. Annexure A1 agreement dated 08.01.2016 was executed between the parties. There arose disputes between them. The applicant has approached this Court alleging non co-operation on the part of the respondents for appointment of an Arbitrator in terms of the agreement, for resolution of the disputes.

2. Heard the learned counsel on either sides.

3. That there exists an arbitration clause in the agreement between the parties, is not disputed. However, opposing the prayer, the respondents rely on Clause 29 of the agreement which reads thus:

“c) It is also a term of the contract that if the contractor does not make any demand for arbitration in respect of any claim in writing within 90 days of receiving the intimation from the Employer that the final bill is ready for payment, the claim of the contractor will be deemed to have been waived and absolutely barred and the Employer shall be discharges and released of all liabilities under contract in respect of these claims.”

4. It is contended that, in terms of the agreement as above, the request for arbitration should have been made within 90 days of intimation from the employer regarding final bill. The same having not been done, the petitioner is dis-entitled to raise any further claim, is the contention.

5. The contention urged by the respondents is unsustainable in view of the decision of the Apex Court in Grasim Industries Limited v. State of Kerala ((2018) 14 SCC 265). Therein it was held that, a clause in the agreement, specifying a lesser period of limitation than that is statutorily available, is unenforceable and void. In Arbitration Request No.78 of 2021, this Court held that, a clause in the General Conditions of contract stipulating that the decision by the authority shall be final, does not prohibit invocation of legal remedies. In the light of the above, the contention of the respondents is negatived.

6. Accordingly, leaving open the rights of the parties to agitate their contentions before the Arbitral Tribunal, the Arbitration Request is ordered as hereunder:

(a) Adv. P.K.Padmakumar, T.C.No.36/164(2), Prabhatham, Enchackal, Vallakkadavu P.O, Thiruvananthapuram – 695 008, is provisionally nominated as the Sole Arbitrator to adjudicate upon the disputes between the parties arising out of the agreement.

(b) A copy of this order shall be communicated to the learned Arbitrator by the Advocate of the applicant within a period of one week from today. A copy of the order shall also be forwarded to the learned Sole Arbitrator by the Registry.

(c) The Arbitrator is requested to forward his statement of disclosure under Section 11 (8) r/w Section

12(1) of the Act 3 of 2016.

(d) The registry shall place the disclosure statement before this Court, for confirmation of the appointment of the Arbitrator.

(e) The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017.

(f) The arbitration costs and fees shall be shared equally.

Sd/-

Sathish Ninan, Judge

vdv

APPENDIX OF AR 31/2020 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE RELEVANT PAGES OF THE AGREEMENT ENTERED INTO BETWEEN THE PARTIES ON

08/01/2016.

ANNEXURE A2 TRUE COPY OF THE ARBITRATION AGREEMENT UNDER CLAUSE NO.29.

ANNEXURE A3 TRUE COPY OF LETTER DT. 21/06/2019 ISSUED ON BEHALF OF THE APPLICANT TO THE RESPONDENTS.

ANNEXURE A4 TRUE COPY OF LETTER DT. 12/07/2019 ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A5 TRUE COPY OF LETTER DT. 29/07/2019 ISSUED BY THE APPLICANT TO THE 1ST RESPONDENT.

ANNEXURE A6 TRUE COPY OF LETTER DATED 04/08/2019 ISSUED BY THE APPLICANT TO THE 2ND RESPONDENT.

ANNEXURE A7 TRUE COPY OF LETTER DATED 04/09/2019 ISSUED BY THE APPLICANT TO THE 1ST RESPONDENT.

ANNEXURE A8 TRUE COPY OF LETTER DATED 15/10/2019 ISSUED BY THE RESPONDENT TO THE APPLICANT.