This writ petition is filed by the petitioner seeking the following

reliefs:-

“(i)

issue a writ of certiorari or such other writ, direction or order

quashing Exhibit P5 as arbitrary, illegal and unconstitutional;

(ii)

issue a writ of mandamus or such other writ, direction or

order compelling the respondents not to enchash the bank

guarantee until the damages are properly quantified in the

arbitration proceedings.”

2.

Apparently, from the pleadings put forth by the petitioner in

this writ petition it is evident that, the subject issue raised by the

petitioner is an arbitrable dispute in accordance with the agreement

executed by and between the parties. In fact the respondents have

appointed an arbitrator, but at that point of time, Arbitration and

Conciliation Act, 1996 was amended and Seventh Schedule is introduced

to the statute and when it is read along with Section 12 especially sub

section (5) thereto, any interested persons functioning as arbitrators is

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prohibited and it is thereupon that petitioner has filed the aforesaid

arbitration request before this Court seeking to appoint any third

persons as Arbitrator. In my considered view, if the arbitration request is

disposed of appropriately, writ petition can also be disposed of, in terms

of the said disposal.

A.R.No.29 of 2016

The applicant is a company registered under the Indian Companies

Act, manufacturing lead acid storage batteries. Annexure I agreement is

executed by and between the petitioner and the respondent for supply of

the batteries manufactured by the petitioner. In the said agreement

parties have agreed that, in the event of any dispute by and between the

parties it will be resolved by resorting to alternative dispute resolution

mechanism provided as per Clause 20, which read thus:-

“20.ARBITRATION

20.1 In the event of any question, dispute or difference arising

under this agreement or in connection therewith (except as to the

matters, the decision to which is specifically provided under this

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agreement) the same shall be referred to the sole arbitration of the

CGMT, BSNL, Kerala Circle Trivandrum or in case his designation is

changed or his office is abolished, then in such cases to the sole

arbitration of the officer for the time being entrusted (whether in

addition to his own duties or otherwise) with the functions of the

CGMT, BSNL, Trivandrum or by whatever designation such an officer

may be called (hereinafter referred to as the said officer), and if the

CGMT, BSNL, Kerala Circle Trivandrum or the said officer is unable or

unwilling to act as such, then to the sole arbitration of some other

person appointed by the CGMT, BSNL, Trivandrum or the said officer.

The agreement to appoint an arbitrator will be in accordance with the

Arbitration and Conciliation Act, 1996 as amended from time to time.

There will be no objection to any such appointment on the ground that

the arbitrator is a Government Servant or that he has to deal with the

matter to which the agreement relates.

Or that in the course of his duties as a Government Servant he has

expressed his views on all or any of the matters in dispute. The award

of the arbitrator shall be final and binding on both the parties to the

agreement. In the event of such an arbitrator to whom the matter is

originally referred, being transferred or vacating his office or being

unable to act for any reason whatsoever, the CGMT, BSNL, Kerala Circle

Trivandrum or the said officer shall appoint another person to act as

an arbitrator in accordance with terms of the agreement and the

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persons so appointed shall be entitled to proceed from the stage at

which it was left out by his predecessors.

20.2 The arbitrator may from time to time with the consent of

both the parties enlarge the time frame for making and publishing the

award. Subject to the aforesaid, Arbitration and Conciliation Act, 1996

and the rules made there under, any modification thereof for the time

being in force shall be