MADRAS HIGH COURT
N. Kumar, J
Engineering Projects India Ltd. – Appellant
Versus
Balaji Projects – Respondent
Original Petition|C.M.P.No.34 of 2017|AC No.30/2018
| Table of Content |
|---|
| 1. introduction of the arbitration case and its background. (Para 1 , 2 , 3 , 4) |
| 2. arguments presented by counsel during web hearings. (Para 5 , 6 , 7) |
| 3. examination of jurisdiction under the arbitration act. (Para 8 , 10 , 12) |
| 4. court's ruling on the effect of arbitration agreements. (Para 18 , 20 , 22 , 26) |
| 5. consequences of waiver related to jurisdiction. (Para 30 , 32 , 38) |
| 6. conclusion on lack of jurisdiction to entertain the case. (Para 52 , 53) |
1. Captioned ''Original Petition'' (hereinafter ''OP'' for the sake of brevity and convenience) is an application under S.34 of ''The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)'', which shall hereinafter be referred to as ''A and C Act'' for the sake of brevity, convenience and clarity.
2. Captioned OP has been filed assailing an ''Arbitral Award dated 04.12.2019 and additional award dated 23.01.2020 bearing reference AC No.30/2018'' (hereinafter collectively and compendiously referred to as ''impugned award'' for the sake of brevity, convenience and clarity) made in the State of Karnataka by a ''Arbitral Tribunal'' (''AT'' for brevity) constituted by a Sole Arbitrator, who is a retired District Judge in the State of Karnataka, who was appointed as sole arbitrator by Hon'ble Karnataka High Court at Bengaluru vide order dated 11.10.2017 in a application under S.11 of A and C Act being C.M.P.No.34 of 2017. To be noted, the entire arbitral proceedings of AT were held in Arbitration Centre - Karnataka (Domestic and International), Bengaluru.
3. Captioned OP being an application under S.34 of the A and C Act, short facts shorn of elaboration will suffice owing to the short statutory perimeter and limited legal landscape of S.34 of the A and C Act within which a legal drill of testing an arbitral award should perambulate. In this view of the matter, it will suffice to set out factual matrix in a nutshell.
4. Short facts, i.e., essential facts imperative for appreciating this order are that there is an agreement dated 18.07.2011 between the petitioner and respondent; that instructions to tenderers / memorandum to tenderers and General Conditions of Contract (GCC) together with this agreement dated 18.07.2011 shall be compendiously and collectively referred to as ''said contract'' for the sake of convenience and clarity; that said contract was for ''Construction of common computerized checkpost at Attibele in Anekal Taluk, Bangalore'' (''hereinafter ''said work'' for convenience and clarity); that petitioner in captioned OP is an enterprise under the Government of India engaged in infrastructural development / construction / civil work, which was awarded some work by a tender process by the Public Works Department, Government of Karnataka in the year 2005; that tender process culminated in an agreement dated 12.08.2005; that petitioner subcontracted some of the work originally to one sub-contractor and subsequently to the respondent in captioned OP; that for the sake of convenience and clarity, petitioner shall be referred to as ''EPI'' denoting ''Engineering Projects India Ltd.'' and respondent ''Balaji Projects'' shall be referred to as ''contractor''; that contractor was claimant before AT and EPI was respondent before AT; arbitrable disputes arose between EPI and contractor; that there is no disputation that there is arbitration clause in said contract; that this arbitration clause serves as an arbitration agreement between parties being arbitration agreement within the meaning of S.2(1) (b) read with S.7 of the A and C Act; that arbitration clause was triggered; that AT was appointed vide order dated 11.10.2017 made in C.M.P.No.34 of 2017 being proceedings under S.11 of the A and C Act by Karnataka High Court; that before AT, contractor as claimant made claims under various heads of claim, such as price enhancement, loss due to delay of three months in handing over the site, unproductive additional overhead charges, loss due to non - utilization of material,
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