Back
2009 Supreme(Online)(KER) 20863
HIGH COURT OF KERALA
ANTONY DOMINIC, J
ROHINI PRASAD – Appellant
Versus
KERALA STATE SPORTS COUNCIL – Respondent
AR 10 2009
SRI.B.JAYASANKAR, SRI.K.S.BHARATHAN, ADV. PIRAPPANCODE V.S.SUDHEER
The existence of a dispute regarding contractual termination requires adherence to the arbitration agreement, warranting the appointment of an arbitrator.
Headnote:
Arbitration - Dispute Resolution - Arbitration and Conciliation Act, 1996 - Section 11(6) - The court appointed an arbitrator to resolve a dispute arising from an architect's contract, emphasizing adherence to the arbitration clause in the agreement.
Fact of the Case:
The applicant, an architect, sought appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, after respondents terminated the agreement concerning construction of a stadium, refusing to pay fees owed as per the agreement.
Finding of the Court:
The court found that a dispute existed as the termination of the agreement was contested, and therefore, as per the arbitration clause in the agreement, an arbitrator was required to resolve this issue.
Issues: Whether an arbitrator should be appointed to resolve the dispute arising from the termination of the architect's contract.
Ratio Decidendi: The court held that, given the existence of a dispute related to the agreement's termination, the arbitration clause must be executed, necessitating the appointment of an arbitrator.
Final Decision: An arbitrator was appointed to arbitrate the disputes between the parties.
O R D E R
This is an application made under Section 11 (6) of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator to resolve the dispute between the parties.
2. By Annexure A3 agreement executed sometime in
2007, applicant was selected and appointed as Architect for rendering professional services for preparation of the sketch, design, working drawings, architectural engineering, electrical engineering, public health engineering HVAC and periodical supervision at site,a project undertaken by the respondents for construction of Jinachandran Memorial Stadium at Kalpetta in Wayanad District. According to the applicant, in pursuance to the agreement, she discharged her part of the obligations, but however, by Annexure A8 respondents raised the objection to certain clauses of the agreement and required the applicant to execute a supplemental agreement, which was not acceptable. It is stated that as a result thereof, the respondents terminated Annexure A3 agreement by its communication dated 28/5/2008, a :2 :
copy of which is Annexure A10. Thereafter, demand for payment was made, which was not complied with by the respondents. Even the appointment of an Arbitrator sought for was not conceded and therefore this application has been filed invoking Section 11 (6) of the Act.
3. Clause 11 of Annexure A3 agreement providing for arbitration reads as under:-
11.Arbitration
11.1 In the event of any dispute, difference or question arising out of or touching or concerning this agreement or the execution of the project, the same shall be referred, at the option of either party (the Owner or the Architects), to the arbitration of a sole Arbitrator mutually agreed upon, and in default of such agreement to the arbitration of two arbitrators, one each appointed by the two parties: who in default of mutual agreement may in turn appoint an umpire. The arbitrator or arbitrators or umpire, as the case may be, will be Fellows of the Indian Institute of Architects. Such submission shall be deemed to be a submission to arbitration within the meaning of the Indian Arbitration Act, 1940 or any statutory modifications thereof. The award of the arbitrator(s) or umpire as the case may be, shall be final and binding upon the parties.
Admittedly, the agreement between the parties has been prematurely terminated. While the applicant contends that the termination is illegal and as a result thereof, she is entitled to be :3 :
paid the entire consideration fixed in the agreement, the respondents contend that the termination was valid and that it is not liable to make payment of any amount to the applicant. This therefore discloses existence of a dispute between the parties, the resolution of which has to be by way of arbitration as provided in Clause 11 of the agreement between the parties. 4. When this application came up for orders before this Court on 29/10/2009, an order was passed requiring the parties to submit panel of Arbitrators so that one could be chosen and appointed. Accordingly, respondent had filed a statement dated 4th November,2009, suggesting M/s.Ajith Associates, Cochin. However, it is pointed out by the applicant that the said establishment is not qualified in terms of Clause 11 of the agreement and in view of this, the suggestion made by the respondent cannot be accepted. This Court is left with a panel of three architects suggested by the applicant. This suggestion is contained in Annexure A15.
5. In the circumstances, having regard to the arbitration agreement between the parties and the existence of the dispute as aforesaid, Ar.Santhosh John, FIIA, Santhosh John and :4 :
Associates, 2nd Floor, 29/1333A1, Vyttila P.O, Kochi-682019 suggested by the applicant is appointed as the sole Arbitrator to arbitrate on the disputes between the applicant and the respondents. It will be open to the Arbitrator to fix reasonable fee for conducting the arbitration. Arbitrator, will issue notice to the parties and conclude the proceedings with
