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TMI Blog2014 (7) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitrator has been rejected by the High Court. 3. 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. The possession of the work site was handed over to the appellant on 2.9.2005. The period for completion of the contract expired on 1.9.2007. The case of the appellant is that the Company had completed a major part of the work. This was disputed by the respondents. According to them, only 41% of the work was completed as on 22.12.2007, based on the original contract price. Based on the revised contract 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. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment of an arbitrator. The learned Single Judge of the High Court by impugned order dated 19.07.2010 dismissed the request holding that no arbitration agreement exists. 5. Review Petition filed by the appellant was also rejected by order dated 2.02.2011. 6. The appellant relied upon Clauses 24 and 25 of the Standard Bidding Document which forms part of the contract and read as follows: "24. Disputes 24.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the Contract or that the decision was wrongly taken the decision shall be referred to the Dispute Review Expert within 14 days of the notification of the Engineer's decision. 25. Procedure for Disputes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done in the present case. In the contract entered into between the parties on 25.08.2005, there was a specific clause which reads as follows: "The parties to this contract agree and undertake the condition that arbitration shall not be a means of settlement of dispute or claims or anything on account of this contract." 10. It was contended on behalf of the respondents that in absence of nomination of Dispute Review Expert, there is no valid arbitration agreement. 11. Learned counsel for the appellant relied upon decision of this Court in M.K. Abraham and Company v. State of Kerala and another, (2009) 7 SCC 636. In the said case, the Court noticed that a letter dated 28.9.1994 was issued by the Ministry of Surface Transport, Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs for works and a preamble clause and Clause 3 in the articles of agreement]. A cyclostyled slip signed by both parties containing the words "arbitration clause as per the Ministry of Surface Transport's Letter No. RW/NH-34041/3/94- DO-III dated 28-9-1994 will be applicable" is attached to the printed articles of agreement. 26. By applying the well-settled principles relating to construction of contract the following position will emerge: (i) the terms of the articles of agreement will prevail over the terms of notice inviting tenders for works, and (ii) the term contained in the cyclostyled attachment to the printed form of articles of agreement will prevail over the terms of the printed articles of agreement. Consequently, the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appointed by the Council of Indian Roads Congress at the request of either party." 13. In the agreement clause (3) it was mentioned that the parties to the contract agreed and undertake the conditions that arbitration shall not be means of settlement of disputes or claims or anything on account of the said contract. 14. The case was heard and judgment was reserved. Subsequently, parties have filed joint application showing the name of the arbitrator mutually agreed to by the parties as under: "Hon. Justice Mr. K. John Mathew Former Judge of the Hon. High Court of Kerala, Veekshanam Road, Kochi, 682018 Kerala State Sd/- Advocate for the Petitioner Babu Thomas K For Rabin Maujumdar Sd/- Adv. M T George Advocate for the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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