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2025 Supreme(Online)(Ker) 31999
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J
M/S. COASTAL ENGINEERING – Appellant
Versus
THE CHAIRMAN COCHIN PORT TRUST – Respondent
AR NO. 10 OF 2025
For the Appellants/Petitioners: SRI.S.SHANAVAS KHAN, SMT.S.INDU, SMT.KALA G.NAMBIAR
For the Respondents: SHRI.M.GOPIKRISHNAN NAMBIAR, SHRI.K.JOHN MATHAI, SRI.JOSON MANAVALAN, SRI.KURYAN THOMAS, SHRI.PAULOSE C. ABRAHAM, SHRI.RAJA KANNAN, SMT.POOJA MENON
The absence of mutual consent in arbitration agreements can preclude dispute resolution through arbitration.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Section 11(6) - Appointment of Arbitrator - Application filed for appointing an arbitrator to resolve disputes arising out of an agreement - Dispute arises on applicability of arbitration clause - Court holds that the clause is unavailable due to specific conditions in the contract. (Paras 1, 6, 9)
(B) Arbitration Clause - The learned counsel for the respondents contended that an arbitration clause was not applicable to the agreement as per specific contract conditions.
(C) SAROD-Ports - The society for affordable resolution of disputes must have both parties' consent for adjudication, which was absent in this case.
Facts of the case:
The application for arbitration was filed due to disputes arising from an agreement involving the applicant and respondents. The respondents argued against the applicability of the arbitration clause based on the contract terms.
Findings of Court:
The court determines that the arbitration clause is not applicable for the dispute resolution due to the absence of relevant conditions and gives liberty for further representation.
Issues: The main issues discussed were the applicability of the arbitration clause under the contract and the necessity for parties' consent to refer disputes to SAROD-Ports.
Ratio Decidendi: The court ruled that specific conditions in contracts can render arbitration clauses inapplicable, emphasizing the need for mutual consent in arbitration mechanisms.
Result: Arbitration Request dismissed.
| Table of Content |
|---|
| 1. filing for arbitration under applicable laws. (Para 1) |
| 2. court's role in arbitration proceedings. (Para 2 , 3 , 4) |
| 3. arguments regarding applicability of arbitration clauses. (Para 5 , 6) |
| 4. court's discretion regarding dispute resolution mechanisms. (Para 7 , 8) |
JUDGMENT
1. This Application is filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 , for appointing an Arbitrator to resolve the disputes between the applicant and the respondents arising out of the Annexure A2 Agreement dated 09.02.2022.
2. The Application is opposed by the respondents by filing a Counter Affidavit.
3. The petitioner has filed a Reply Affidavit also.
4. I heard the learned counsel for the applicant, Sri.
Shanavas Khan, and the learned counsel for the respondents, Smt. Pooja R. Menon.
5. The learned counsel for the applicant contended that, since Annexure A11 GCC is made applicable to the Annexure A2 Agreement executed by the Applicant and the respondents, the Arbitration Clause contained in Annexure A11 GCC is available to the applicant. Hence, an Arbitrator is liable to be appointed to resolve the dispute between the parties.
6. On the other hand, the learned counsel for the respondents contended that as per Clause 15 of Annexure R1 Special Conditions of Contract, Clause 25 of GCC dealing with “settlement of disputes and arbitration” is not applicable to the Annexure A2 contract. In view of Clause 15 of Annexure R1 Special Conditions of Contract, I find that the arbitration clause is not available for the applicant to seek the appointment of an arbitrator.
7. The learned counsel for the applicant pointed out Annexure A12 Order issued by the Government of India, constituting the Society for Affordable Redressal of Disputes-Ports (SAROD-Ports) for resolving similar types of disputes through the said mechanism. It is pointed out by the learned counsel for the respondents that consent of both parties is necessary for referring the disputes to SAROD-Ports and the respondents are not amenable for referring the matter to SAROD-Ports.
8. In an Arbitration Request, this Court cannot refer the matter for adjudication to SAROD-Ports. It is for the applicant to submit necessary representation expressing its desire to refer the matter to SAROD- Ports and it is for the respondents to respond to the same.
