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2025 Supreme(Online)(Ker) 49777
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J
CYRIL JACOB VELLAPALLY – Appellant
Versus
ASHLY THOMAS JACOB – Respondent
AR NO. 77 OF 2025
For the Appellants/Petitioners: SRI.B.ASHOK SHENOY, SRI.P.S.GIREESH, SHRI.ARJUN R NAIK, SHRI.UMASANKER U.U, SHRI.ADITYA A. SHENOY
For the Respondents: SRI.ARUN.B.VARGHESE, SMT.RAKHI RAJ, SHRI.ALAN LALU JOHN, SRI.THOMAS P.KURUVILLA
Court validates timely request for new Arbitrator appointment due to passing of previous Arbitrator and permits proceedings continuation without excluding interest.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Appointment of Arbitrator - The present Arbitration Request is filed to appoint a new Arbitrator due to the passing of the previously appointed Arbitrator, with considerations regarding time limitation and exclusions of interest raised - Court finds request timely and allows the appointment of a new Arbitrator from the stage of the previous proceedings. (Paras 1-4)
(B) Time-Barring of Requests - The court finds the request not time-barred, being submitted within a year of the Arbitrator's death, thus allowing for the appointment of a new Arbitrator in a timely manner, enabling proceedings to continue smoothly from the previous stage. (Paras 4)
Facts of the case:
The petitioner sought to appoint a new Arbitrator after the death of the previously appointed arbitrator, with issues raised regarding the timing of the request and the allocation of interest.
Findings of Court:
The request to appoint a new Arbitrator was allowed, and the proceedings would continue from where the earlier Arbitrator had left off.
Issues: Whether the Arbitration Request was time-barred and if interest could be excluded.
Ratio Decidendi: The court ruled the request was timely as it was filed within one year of the previous Arbitrator's death and resolved to appoint a new Arbitrator to continue the proceedings.
Result: The Arbitration Request is allowed.
O R D E R
1. The present Arbitration Request is filed to appoint a new Arbitrator in substitution of the Arbitrator appointed as per Annexure A6 Order of this Court, as the Arbitrator appointed by this Court passed away. As per Annexure A6, the Arbitrator was appointed to adjudicate the dispute between the parties arising out of the Annexure A2 Agreement.
2. The Arbitration Request is opposed by the respondent by contending that the Request is time-barred and that, if at all a new Arbitrator is appointed, the respondent is not responsible for the interest on the amount, if any, awarded by the Arbitrator during the period of delay. It is also contended that the Arbitrator appointed by this Court as per Annexure A6 has proceeded with the matter substantially, and hence, at any rate, the proceedings are to be continued from the stage at which it was stopped by the earlier Arbitrator.
3. I have considered the contentions.
4. It is seen that the Arbitrator appointed by this Court as per Annexure A6 Order passed away on 31/05/2024. This Request is filed on 03/04/2025. It is true that the Request was not filed immediately. Even then, the Request could not be said to be time-barred as the same was filed within one year from the death of the Arbitrator. Hence, I find that a new Arbitrator can be appointed in this Request. As rightly pointed out by the learned counsel for the respondent, since proceedings have been made substantially by the earlier Arbitrator, the new Arbitrator can proceed from the stage at which the proceedings were stopped by the earlier Arbitrator. The said course is acceptable to the petitioner also. With regard to the exclusion of interest, I am of the view that since the Request is filed within a reasonable time, the exclusion of interest could not be allowed.
5. Accordingly, this Arbitration Request is allowed, and it is ordered as follows.
1) The Kerala High Court Arbitration Centre is directed to nominate a District Judge (Retd.) from Panel-III as the sole Arbitrator to resolve the disputes that have arisen between the petitioner and the respondent under Annexure A2 Agreement.
2) The learned Arbitrator may entertain all issues between the parties in connection with the said agreement, jurisdiction and limitation, if any, raised by the parties. All contentions of the parties are left open and they are liberty to raise their claims and counterclaims, if any, before the learned Arbitrator, in accordance with law.
3) The learned Arbitrator shall proceed from the stage where the earlier Arbitrator stopped the Arbitration proceedings and conclude the same.
4) The Registry shall communicate the substance of this order to the Kerala High Court Arbitration Centre within ten days and the Centre shall inform the learned Arbitrator within a further period of one week and shall obtain duly signed Form 3 as required under Rule 20(4) of the Kerala High Court (Arbitration Centre) Rules, 2025 and forward the same to this Court.
5) Upon receipt of the Form 3, the Registry shall issue a certified copy of this order with a copy of the Form 3 appended to the Kerala High Court Arbitration Centre. The Original of the Disclosure Statement shall be retained by the Kerala High Court Arbitration Centre.
6) The fees of the learned Arbitrator of the Kerala High Court Arbitration Centre shall be governed by Rule 28 of the Kerala High Court (Arbitration Centre) Rules, 2025. The manner in which the fees and costs payable by the parties shall be governed by Rule 27 of the Kerala High Court (Arbitration Centre) Rules, 2025.
7) If the learned Arbitrator needs the assistance of an expert, then he is at liberty to seek such assistance in the course of the arbitration proceedings.
