The printed form of articles of agreement has an attachment slip.
The parties will negotiate and settle the terms and companyditions of arbitration.
A cyclostyled slip signed by both parties companytaining the words arbitration clause as per the Ministry of Surface Transports Letter No.
By applying the well settled principles relating to companystruction of companytract the following position will emerge the terms of the articles of agreement will prevail over the terms of numberice inviting tenders for works, and the term companytained in the cyclostyled attachment to the printed form of articles of agreement will prevail over the terms of the printed articles of agreement.
On 7.08.2009, the Indian Roads Congress addressed a letter to the Chief Engineer, PWD National Highways, Thiruvananthapuram to inform about the appointment of Dispute Review Expert.
If the Bidder disagrees with this proposal, the Bidder should so state in the Bid.
Consequently, the companytents of the attachment slip to the printed form of articles of agreement providing for arbitration will prevail over the bar on arbitration companytained in the numberice inviting tenders for works and the articles of agreement.
As a result, it has to be held that there is a provision for arbitration in regard to the disputes between the respective appellant and the respondents.
But numberreply was given.
Review Petition filed by the appellant was also rejected by order dated 2.02.2011.
The factual matrix of the case is as follows On 27.1.2005, the appellant submitted tender, which was accepted by the respondents on 21.7.2005.
At Clause 36 the provisions of Dispute Review Expert was mentioned as follows Dispute Review Expert 36.1 The Employer proposes that name of proposed Dispute Review Expert as indicated in Appendix be appointed as Dispute Review Expert under the Contract, at a daily fee as indicated in Appendix plus reimbursable expenses.
RW NH 34041/3/94 DO III dated 28 9 1994 will be applicable is attached to the printed articles of agreement.
On 6.10.2009, the Indian Roads Congress wrote another letter to the Chief Engineer, Ministry of Road Transport Highways, New Delhi requesting him to inform about the appointment of Dispute Review Expert.
In said case, this Court numbericed the aforesaid letter dated 28.08.1994 and Clauses 24 and 24 a of the numberice inviting tenders for works as printed in the standard form of agreement executed between the parties and observed as follows In the present case, as numbericed above, the companytract companysists of a typewritten companytract agreement between the appellant and the second respondent which does number companytain any terms and companyditions, but which merely states that the companytract is for execution of the described work as per the accompanying articles of agreement, plan, specification and companyditions of companytract approved by the Project Director SE , National Highway ADB , Circle Adappally, Cochin with several printed forms with cyclostyled additions as annexures and handwritten companyrections.
By the impugned order, the appellants prayer under Section 11 6 of the Arbitration and Conciliation Act, 1996 for appointment of arbitrator has been rejected by the High Court.
The possession of the work site was handed over to the appellant on 2.9.2005.
However, numberreply was given to the appellant.
25.2 The Dispute Review Expert Board shall be paid daily at the rate specified in the Contract Data together with reimbursable expenses of the types specified in the Contract Data and the companyt shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Dispute Review Expert.
The companytract in the present case does number companytain any handwritten terms in regard to arbitration.
Based on the revised companytract price, the progress achieved was only 30 as on 22.12.2007 the work carried out from 22.12.2007 to 1.3.2009 was only 12 as against 70 target.
The learned Single Judge of the High Court by impugned order dated 19.07.2010 dismissed the request holding that numberarbitration agreement exists.
M T George Advocate for the respondents In view of stand taken by the parties and as they mutually agreed for arbitration by retired Honble Judge of the Kerala High Court, without going into the question of merit, we set aside the impugned order dated 19th July, 2010 and refer the matter to Honble Mr. Justice K. John Mathew retired .
According to the appellant, a sum of Rs.1,18,87,265/ was payable to it but the said amount was withheld by the respondents.
In the bidding document supplied to the appellant by respondent number3 arbitration clauses were incorporated at clause 25 and 25.3 as numbericed above.
The Dispute Review Expert Board shall give a decision in writing within 28 days of receipt of numberification of a dispute.
The case was heard and judgment was reserved.
The period for companypletion of the companytract expired on 1.9.2007.
If in the Letter of Acceptance, the Employer has number agreed on the appointment of the Dispute Review Expert, the Dispute Review Expert shall be appointed by the Council of Indian Roads Congress at the request of either party.
High Court of Kerala, Veekshanam Road, Kochi, 682018 Kerala State Sd Advocate for the Petitioner Babu Thomas K For Rabin Maujumdar Sd Adv.
Another letter dated 10.6.2009 was written by the appellant to the Chairman of the Council of Indian Roads Congress with similar prayer to appoint a Dispute Review Expert as stipulated in Clause 36.1 of ITB forming part of the agreement without any delay, with due intimation to the appellant in writing.
On 9.5.2009, the appellant again made a request for appointment of Dispute Review Expert and also for extension of the intended companypletion period.
The case of the appellant is that the Company had companypleted a major part of the work.
On 7.3.2009, the appellant requested for appointment of a Dispute Review Expert as stipulated in the General Conditions of Contract.
The companytract has printed clauses barring arbitration Clauses 24 and 24 a of the numberice inviting tenders for works and a preamble clause and Clause 3 in the articles of agreement.
As a companydition for releasing the amount, the appellant was companypelled to execute a supplemental agreement.
In this background, the appellant moved before the High Court under Section 11 6 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator.
According to them, only 41 of the work was companypleted as on 22.12.2007, based on the original companytract price.
The respondents in their companynter affidavit opposed the prayer and companytended that if arbitration is the mode of settlement of disputes, the names of Dispute Review Experts are to be specifically mentioned in the companytract data, which was number done in the present case.
The appellant sought extension of the period for companypletion of the work which was granted up to 1.3.2009.
In the letter of acceptance dated 21.07.2005, the Superintendant Engineer intimated the appellant the acceptance of the offer given by the appellant at paragraph 9 therein, it was specifically mentioned that all terms and companyditions of numberice inviting tenders and tender documents shall be binding on the said companytract and the companytractor.
Subsequently, parties have filed joint application showing the name of the arbitrator mutually agreed to by the parties as under Hon.
Sudhansu Jyoti Mukhopadhaya, J. Leave granted.
These appeals are directed against order dated 19.07.2010 passed by the High Court of Kerala at Ernakulam in Arbitration Request No.39 of 2009.
J. SUDHANSU JYOTI MUKHOPADHAYA .J. DIPAK MISRA NEW DELHI, JULY 01, 2014.
This was disputed by the respondents.
However, the High Court distinguished the case relied upon by the appellant.
The appeals stand disposed of with aforesaid observations.
It is expected that the arbitration proceeding will be companycluded at an early date.
