PERUMALIL GRANITE CONSTRUCTIONS, VALIYAKAVALA, VAIKKOM, KOTTAYAM Vs. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, SOUTHERN RAILWAY HEAD QUARTERS, PARK TOWN, CHENNAI

JUDGEMENT

(1.) This request is made by the applicant, seeking to appoint an independent Arbitral Tribunal with a person not in employment or has any past business relationship with the opposite parties, for resolution of disputes as per Annexure-A7, seeking payment of an amount of Rs. 5,45,93,519/- on account of the practise carried out as per the agreement executed by and between the applicant and the opposite parties. The execution of the agreement and the work carried out by the applicant in accordance with the agreement are not under dispute. However, when the demand was raised by the applicant to appoint an arbitrator to resolve the disputes which were not referred, and consequent to which, applicant has approached this Court by filing A.R.No.108 of 2017, whereby the opposite parties were directed to appoint an arbitrator in accordance with the General Conditions of Contract. Thereupon, the Arbitral Tribunal was constituted in accordance with the terms and conditions contained under Sections 63 and 64 of the General Conditions of Contract.

(2.) The case of the applicant is that, the 1st opposite party, instead of appointing an independent arbitrator, a panel of the retired Railway officers are provided to the applicant and directed the applicant to select any two names, to which, replies dated 06.04.2018 and 19.05.2018 were sent, objecting the names, however, suggesting the name of yet another retired Railway employee. Therefore, according to the applicant, in accordance with the prohibition contained under Section 12(5) and Schedule Seven, as amended by the Amendment Act, 2015, interested persons are not entitled to function as arbitral tribunal, and therefore, the constitution of the tribunal with the retired Railway employees cannot be sustained under law, and it is in that background, applicant is seeking appointment of an independent arbitrator.

(3.) The opposite parties have filed a counter affidavit, refuting the claims and demands raised by the applicant. Among other contentions, it is stated that, the request itself is not maintainable, since as per Annexure-A8 order passed by this Court, the issue has become final and conclusive. Therefore, the findings in the said order operate as res judicata and the applicant is legally estopped and precluded from filing a fresh arbitration request for similar relief. It is also submitted that, the applicant has refused to comply with the directions in Annexure-A8, despite Annexure-A9 letter sent to him by the opposite parties, instructing to name two persons from the panel of four retired Railway Officers, to act as his nominee arbitrator. The applicant has insisted to constitute the arbitral tribunal with the name suggested in Annexure-A7, yet another retired Railway Officer, to act as his nominee arbitrator in the Arbitral Tribunal.