YASHWITHA CONSTRUCTIONS (P) LIMITED Vs. SIMPLEX INFRASTRUCTURE LIMITED

JUDGEMENT

(1.) Aggrieved by the dismissal order dated 26.09.2014 in A.O.P.No.4 of 2013 on the file of the Principal District Judge, Prakasam at Ongole, the instant Civil Revision Petition is filed under Article 227 of the Constitution of India.

(2.) The facts that are relevant for the purpose of disposal of the instant revision petition are, respondent No.1 formed a joint venture with HO -HUP, Malaysia, and was awarded the work of Construction Package AP -12 of National Highway No.5, for rehabilitation and upgrading of the existing two -lane road to four -six lane divided carriage way between Kavali to Ongole, Kms.222 to 291 of NH -5 in the State of Andhra Pradesh. Respondent No.1 in turn engaged the services of the petitioner as sub -contractor for executing about 50% of the said work on its behalf between km 242 to km 263, km 266.500 to 269 and km 284 to 291 and entered into agreement dated 22.05.2002 at Ongole, Prakasam District.

(3.) Some time thereafter when disputes arose between them with respect to measures, payments, etc., the petitioner filed suit in O.S.No.72 of 2002 against respondent No.1 before the Senior Civil Judge, Kandukur, and sought ad interim injunction in I.A.No.1391 of 2002, which was granted by the said Court. Thereafter, on the application of respondent No.1 -defendant in I.A.No.1503 of 2002 under Section 8 of the Arbitration and Conciliation Act, 1996 (for short, the Act), the same was allowed for resolution of dispute by an Arbitrator as per Arbitration clause existing in the contract between the parties by its order dated 11.10.2002. Since the Arbitration clause provides for appointment of a single Arbitrator for resolution of disputes, it is alleged that the Managing Director of respondent No.1 has appointed Mr. P.R.Dhar as Arbitrator by its letter dated 18.10.2002, one of the Directors of respondent No.1, which fact was learnt subsequently by the petitioner, and therefore, the petitioner challenged his appointment under Sections 12 and 13 of the Act, but the said application was rejected by the Arbitrator. Respondent No.1 filed its claim statement claiming an amount of Rs.1,57,88,926 -72 ps, whereas the petitioner filed its counter -claim claiming an amount of Rs.2,87,19,990/ -, and in addition thereto, the price variation in accordance with Clause 4 of the agreement and interest at 18% showing the amounts under various heads as counter claims 1 to 4. Respondent No.1 filed its rejoinder to the counter claim and even the petitioner filed its reply. The petitioner on 11.08.2004, addressed a letter to the Arbitrator to call for the records relating to certificate of measurements, measurement records, bills paid to respondent No.1 by respondent Nos.3 and 4, etc., and, thereafter, the Arbitrator -Mr. P.R.Dhar resigned as Arbitrator due to ill -health. Since no substitute Arbitrator was appointed on the application of the petitioner in A.A.No.50 of 2004, this Court appointed one Mr. S.K.Biswas as Sole - Arbitrator, and consequently, dismissed the Arbitration Application by the orders dated 04.03.2004, which was confirmed by the Honble Supreme Court in S.L.P.(C) No.11279 of 2006.