OOMMEN THOMAS PANICKER Vs. MONICA CONSTRUCTION

JUDGEMENT

(1.) The appellant is the 1st defendant in O.S.No.202 of 2018 on the file of the First Additional Subordinate Judge's Court, Thiruvananthapuram, a suit filed by the 1st respondent-plaintiff against the appellant and the 2nd respondent to realise a sum of Rs.85,80,203/- towards balance cost on works undertaken by the 1st defendant in a construction contract. The plaintiff has also sought for a declaration that termination of the said contract by the 1st defendant is illegal. In O.S.No.202 of 2018, the 1st defendant filed I.A.No.2 of 2020, an application under Section 8(1) of the Arbitration and Conciliation Act, 1996, to refer the parties to arbitration. The plaintiff filed objections. After considering the rival contentions, the court below, by the order dated 01.03.2021, dismissed that application as not maintainable, on the ground that, since the amount sought to be recovered is in excess of Rs.85,00,000/-, in the dispute arising out of a construction and infrastructure contract, O.S.No.202 of 2018 is liable to be transferred to the Commercial Court, Thiruvananthapuram, in view of the provisions under Section 15 of the Commercial Courts Act, 2015. Challenging the said order, the appellant has filed this appeal before this Court, under Section 104(1) of the Code of Civil Procedure, 1908 and Section 37(1) of the Arbitration and Conciliation Act, 1996.

(2.) Initially, Registry has not numbered this appeal raising certain doubts as to its maintainability. On 08.07.2021, when the unnumbered appeal came up for consideration, after hearing preliminary arguments of the learned counsel for the appellant, we found that the question of maintainability of the appeal requires detailed consideration with notice to the respondents. Therefore, Registry was directed to number the appeal, subject to the condition that the question of maintainability will be decided with notice to the respondents. Thereafter, on the same day, this Court issued urgent notice by speed post to the respondents, along with a copy of the order dated 08.07.2021, returnable within ten days.

(3.) Heard the learned counsel for the appellant1 stdefendant and also the learned counsel for the 1st respondent-plaintiff on the question of maintainability of this appeal. The 2nd defendant in O.S.No.202 of 2018, who is arrayed as the 2nd respondent herein, is the Arbitrator as per the contract.