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Madras High CourtOP/80/2017allowed

M/S.Railone Projects Pvt.Ltd. v. The Chief Engineer/Cn/South/

2017-06-19Honourable Dr Justice Anita Sumanth4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.06.2017

CORAM

THE HONOURABLE DR. JUSTICE ANITA SUMANTH O.P.NO.80 OF 2017 M/s.Railone Projects Pvt. Ltd., represented by its Authorised Signatory Mr.I. Mallikarjuna Rao, .... Petitioner Vs

1. The Chief Engineer/CN/ South/MS Southern Railway, Egmore, Chennai 600 008.

2. The Deputy Chief Engineer/ Works, for Chief Administrative Officer, Egmore, Chennai 600 008.

.... Respondents Original Petition filed under Section 11(4) of the Arbitration and Conciliation Act, 1996 praying for appointment of an independent and impartial Arbitrator to hear and decide the disputes between the petitioner and the respondents in accordance to the section 12(5) of the amended Arbitration and Conciliation Act, 1996 arising out of the Agreement dated 21.6.2013 as set outabove and to complete the Arbitration Proceedings within the stipulated time decided by this Court. for Petitioner : M/s. K. Aparna Devi for Respondent : Mr.P.T.Ramkumar

ORDER

This petition is filed praying for the appointment of an independent Arbitrator to hear and decide the disputes between the Petitioner and the Respondents arising out of Agreement dated 21.06.2013.

2. A preliminary objection was raised by the learned counsel for the respondent, Mr.P.T.Ramkumar, to the effect that a petition under section 9 of the Arbitration and Conciliation Act (in short 'Act') has been filed by this petitioner in Delhi that constitutes a bar to the filing of the present petition before this Court in terms of section 42 of the Act.

3. He would rely on the provisions of section 42 of the Act reading thus, '42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court."

4. This objection does not survive in the light of the

judgment of the Supreme Court in the case of State of West Bengal and others Vs. Associated Contractors ((2015) 1 Supreme Court Cases 32) to the effect that only applications filed under section 9 of the Act would come within the ambit of section 42 of the Act.

5. Moreover the power under section 11(5) of the Act is exercised by Chief Justice or his /her designate who do not constitute a 'Court' as defined under section 2(1)(e) of the Act reading thus;

'(e) "Court" means- (i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subjectmatter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;'

The preliminary objection raised by Mr. Ramkumar is thus rejected.

6. I, thus, appoint Mr.K.Palanisamy, Retired District Judge, No.333/H, Malaiyappapuram Street, Andarai Post, Lalgudi

Taluk, Tiruchirapalli District 621 703, as the Sole Arbitrator to enter upon reference and adjudicate the disputes inter se the parties and DR. ANITA SUMANTH, J.

msr after issuing notice to the parties and upon hearing them, endeavour to pass an award as expeditiously as possible, preferably within a period of six months from the date of receipt of the order. The learned Arbitrator is at liberty to fix his remuneration and other incidental expenses, which shall be borne by both parties equally. The proceedings may be conducted under the aegis of the Madras High Court Arbitration Centre and in accordance with the Madras High Court Arbitration Rules. 7.The Original Petition is, accordingly, allowed, leaving the parties to bear their own costs.

19.06.2017 Index:Yes/No msr O.P.NO.80 OF 2017