Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
Smart Summary

Factual and Procedural Background

This writ petition challenges the order dated 14.9.2001 passed in C.M.P No. 79/2001, seeking a direction for appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996. The petitioner, a Class/special class contractor, was awarded the contract for construction of a bridge between Yethabadi-Buyyanadoddi across Shimsha river in Malavalli as per contract agreement No. 5/96-97 dated 8.5.1996. The petitioner could not complete the work within the stipulated time, attributing the delay to several lapses by respondent no. 2. By letter dated 6.6.2000, the petitioner requested settlement of claims, which remained unresolved beyond 30 days. Invoking clause 29 of the Conditions of Contract and Sections 11(6) and 11(8) of the Arbitration Act, the petitioner filed C.M.P 79/2001 seeking appointment of an Arbitrator. The learned single Judge dismissed the petition on the ground that the existence of an arbitration agreement is a condition precedent for maintaining a petition under Section 11 of the Act. This dismissal is challenged by the present writ petition.

Legal Issues Presented

  1. Whether clause 29 of the Conditions of Contract constitutes a valid arbitration agreement permitting appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.
  2. Whether the petitioner is entitled to the appointment of an Arbitrator despite the absence of a clear arbitration clause in the contract.
  3. The applicability and interpretation of precedent decisions, particularly Mysore Construction Company v. Karnataka Power Corporation Ltd., in determining the maintainability of the petition.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner contends entitlement to appointment of an Arbitrator under clause 29 of the Conditions of Contract.
  • Reliance on a prior order of this Court in W.P No. 33486/2000 directing appointment of an Arbitrator in an identical situation.
  • Submission that the learned single Judge erred in relying on the decision in Mysore Construction Company v. Karnataka Power Corporation Ltd. to dismiss the petition.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mysore Construction Company v. Karnataka Power Corporation Ltd. (I.L.R 2000 KAR. 4953) Existence of an arbitration agreement is a condition precedent for maintaining a petition under Section 11 of the Arbitration Act. The Court upheld the dismissal of the petition due to absence of a valid arbitration clause, agreeing with the learned single Judge’s reliance on this precedent.

Court's Reasoning and Analysis

The Court acknowledged that under Section 11(6) of the Arbitration Act, the Chief Justice or designated Judge can appoint an Arbitrator in accordance with the terms of the agreement. However, it emphasized the necessity of a valid arbitration clause in the contract as a precondition. The Court examined clause 29 of the Conditions of Contract and concluded that it cannot be construed as an arbitration agreement or clause sufficient to invoke Section 11. The petitioner’s reliance on a prior order in W.P No. 33486/2000 was rejected because, in that case, parties had expressly agreed to arbitration, unlike the present dispute. The Court also noted that in another identical case (W.A No. 975/2002), the issue was not entertained due to lack of an arbitration clause. Consequently, the Court found no error in the learned single Judge’s dismissal of the petition. The Court clarified that dismissal of the writ petition does not preclude the petitioner from seeking redressal through the Civil Court in accordance with law.

Holding and Implications

DISMISSED

The writ petition seeking appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 was dismissed due to the absence of a valid arbitration agreement or clause in the contract. The Court’s decision directly affects the petitioner by denying the invocation of arbitration for dispute resolution in this matter. No new precedent was established. The petitioner remains free to pursue remedies through the Civil Court as per applicable law.

    P. Dasaratharama Reddy Complex v. Govt. Of Karnataka

    This writ petition is filed against the order dated 14.9.2001 passed in C.M.P No. 79/2001 and for a direction to appoint an Arbitrator in terms of Section 11 of the Arbitration and Conciliation Act, 1996.

    2. It is alleged that the petitioner is a Class/special class contractor and as per the contract agreement No. 5/96-97 dated 8.5.1996, he was entrusted, the work of construction of bridge between Yethabadi-Buyyanadoddi across Shimsha river in Malavalli, Petitioner could not complete the work within the stipulated time on account of several lapses on part of respondent no. 2, Therefore by letter dated 6.6.2000 the petitioner asked for settlement of claims, but the same was not settled even after 30 days of receipt of the letter. In view of clause 29 of the Conditions of contract dated 8.5.1996, he is entitled for arbitration and hence filed C.M.P 79/2001 seeking for appointment of Arbitrator invoking Sec. 11(6) & (8) of the Arbitration Act. But the leaded single Judge holding that existence of an arbitration agreement is a condition precedent for maintaining a petition u/s. 11 of the Act, dismissed the petition as not maintainable. The same is challenged by filing this writ.

    3. The learned counsel for the petitioner submits that the petitioner is entitled for appointment of an arbitrator as per clause 29 of the Conditions of Contract. He also submits that in an identical situation, this Court in W.P No. 33486/2000 filed against CM.P 1/2000, by order dated 7.4.2000 directed to appoint an arbitrator. Therefore the learned single Judge has erred in considering the decision in MYSORE CONSTRUCTION COMPANY v. KARNATAKA POWER CORPORATION LTD. (I.L.R 2000 KAR. 4953).

    4. Heard the learned counsel for the petitioner and perused the materials placed on record.

    5. No doubt, the Chief Justice or the designated Judge can appoint an Arbitrator invoking Sec, 11(6) as per the terms of the agreement and while appointing an Arbitrator, it is to be seen that the Arbitrator so appointed is competent, impartial and independent person and if there is any dispute or difference as contemplated in the clause, the same can be considered by the Arbitrator himself. But, at the same time it is necessary that there should be an arbitration clause in the agreement. In the instant case, the argument that clause 29 of the Conditions of Contract forms part of the contract agreement between the parties, the same cannot be construed as an arbitration agreement or that there is an arbitration clause to settle the dispute. The learned single Judge on overall consideration and considering the MYSORE, CONSTRUCTION COMPANY's case (supra) has not interfered, This Court has also in another identical case in W.A No. 975/2002, has not considered the issue in absence of arbitration clause. Hence the petitioner cannot take advantage of W.P No. 33486/2000 as in that case parties agreed to raise the dispute before the arbitrator and had no objections to consider the case. Therefore this case is not helpful. No interference is called for. The writ petition is dismissed. However, dismissal of this petition will not preclude the petitioner to approach the Civil Court for getting his grievance redressed in accordance with law.

    Use AI to get other relevant cases.

    Comments

    P. Dasaratharama Reddy Complex v. Govt. Of Karnataka
    (Oct 10, 2002)