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2026 DAILYLAW 615 (KER)

P C Thomas & Co. v. Government Dental College

2026-05-25

S Manu

body2026
JUDGMENT : S.MANU, J. The petitioner is a partnership firm engaged in construction works. The 1 st respondent is a Government Dental College. The 2 nd respondent is a Project Management Consultant. 2. The petitioner’s partnership firm was awarded with the work of construction of Government Dental College, Alappuzha – Phase II. Agreement was executed on 06.06.2019. The letter of acceptance was issued on 16.05.2019. Stipulated date for commencement of the work was 10.06.2019. Date stipulated for completion of the work was 09.12.2020. The petitioner has produced a copy of the letter of acceptance as Annexure A1. 3. A tripartite agreement was entered into between the petitioner, 1 st respondent and the 2 nd respondent on 24.09.2019. As per the tripartite agreement, the 2 nd respondent was responsible for contract management including preparation of bills, supervision of works, quality assurance, recording measurements etc. The petitioner has referred to various clauses in the tripartite agreement in the memorandum of arbitration request. A copy of the tripartite agreement has been produced as Annexure A2. 4. According to the petitioner, the respondents delayed the release of payments much beyond the contractually stipulated period and thus committed breaches of relevant clauses of the agreement. Petitioner alleges that there was inordinate delay in releasing of payments on various occasions. In paragraph nos.5, 6 and 7 of the memorandum of arbitration request petitioner has narrated the details of alleged delayed payments. Petitioner further states that due to delay in payments the petitioner was put to severe financial difficulty and was compelled to stop further execution of the work with effect from 30.06.2023. Thereafter, some partial payments were made. 5. The agreement contains an arbitration clause. Pre-arbitral dispute resolution process is mentioned under Clause 25. The petitioner invoked the said remedy and the Dispute Redressal Committee rendered its decision on 18.06.2024. Petitioner was not satisfied and it invoked the arbitration by letter dated 13.07.2024. Thereafter, several communications were issued to the respondents raising various grievances. 6. On 12.05.2025, petitioner was requested to submit a proposal for restarting the project. Petitioner gave its reply on 30.05.2024, intimating that resumption was possible only after clearing of pending dues. Subsequently on 24.12.2024, the petitioner demanded release of Rs.4,10,08,559/-, additional GST liability of Rs.48,21,170/- and security deposit of Rs.69,38,278/-. Out of the claims raised by the petitioner by letter dated 24.12.2024, only a principal sum of Rs.4,10,08,559/- was released by 22.01.2025. Petitioner gave its reply on 30.05.2024, intimating that resumption was possible only after clearing of pending dues. Subsequently on 24.12.2024, the petitioner demanded release of Rs.4,10,08,559/-, additional GST liability of Rs.48,21,170/- and security deposit of Rs.69,38,278/-. Out of the claims raised by the petitioner by letter dated 24.12.2024, only a principal sum of Rs.4,10,08,559/- was released by 22.01.2025. It is further stated that on 09.01.2025, a meeting was convened by the Directorate of Medical Education. A copy of the minutes of the meeting is produced as Annexure A3. However, the disputes were not resolved. Another meeting was convened on 10.07.2025 and the minutes of the said meeting is produced as Annexure A4. Thereafter, 12 th RAB was submitted by the petitioner and the same was not paid. 7. Petitioner issued a notice on 22.11.2025, seeking release of various payments and raising other grievances. The arbitration clause was invoked in the said notice. A copy of the notice has been produced as Annexure A5. On 09.01.2026, the 2 nd respondent issued a reply letter to the petitioner. A copy of the same has been produced as Annexure A7. The 2 nd respondent denied all allegations and claims of the petitioner as being incorrect and baseless. The 2 nd respondent also refused to proceed with arbitration relying on Clause 25 of the conditions of contract which envisages appointment of the Sole Arbitrator by the 2 nd respondent. Aggrieved by non-co-operation on the part of the respondents in proceeding the arbitration, this arbitration request was filed. 8. The 2 nd respondent entered appearance and a counter affidavit. The 2nd respondent has denied all averments and allegations raised by the petitioner in the memorandum of arbitration request. Further, the 2 nd respondents states in paragraph No.5 of the counter affidavit that the power and authority to appoint the Sole Arbitrator is vested exclusively and unilaterally with the 2 nd respondent. It also states that the contract does not provide for appointment of the Sole Arbitrator either by the contractor or by mutual consent. 9. Heard the learned Counsel for the petitioner, the learned Senior Government Pleader for the 1 st respondent and the learned Counsel for the 2 nd respondent. The learned Senior Government Pleader also denied the averments and allegations of the petitioner raised in the memorandum of arbitration request. 9. Heard the learned Counsel for the petitioner, the learned Senior Government Pleader for the 1 st respondent and the learned Counsel for the 2 nd respondent. The learned Senior Government Pleader also denied the averments and allegations of the petitioner raised in the memorandum of arbitration request. She submitted that the 1 st respondent is seriously disputing the contention of the petitioner that there was undue delay in releasing the payments. She submitted that such contentions may not considered and commented upon by this Court. The learned Counsel for the 2 nd respondent reiterated the contentions raised in the counter affidavit and submitted that this arbitration request is only to be rejected. 10. On appraisal of the arguments raised by the learned Counsel for the petitioner, the learned Senior Government Pleader as well as the learned Counsel for the 2 nd respondent and also on perusal of the pleadings, I am of the definite view that serious disputes have arisen between the parties regarding execution of the work and other matters covered by Annexures A1 and A2. Clause 25 of the general conditions of contract envisages resolution of disputes by the Dispute Redressal Committee and in case the said exercise is not producing results, adjudication by arbitral tribunal consisting of a Sole Arbitrator. Though the 2 nd respondent has a contention that the exclusive authority to nominate the Sole Arbitrator is vested with it, in view of the settled position of law, the said contention cannot be accepted. No party to dispute can be permitted to nominate the adjudicator unilaterally. In view of various authoritative pronouncements of the Honourable Supreme Court laying down the law in this regard unequivocally, the said contention of the 2 nd respondent is without any merits. 11. In view of the above discussion, I find that this arbitration request can be allowed. I make it clear that this Court while exercising the limited jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996 , has not addressed the merits of the rival contentions of both sides regarding the basic disputes. The same is left for adjudicaiton by the learned Arbitrator. I dispose this arbitration request with the following directions:- 1. I make it clear that this Court while exercising the limited jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996 , has not addressed the merits of the rival contentions of both sides regarding the basic disputes. The same is left for adjudicaiton by the learned Arbitrator. I dispose this arbitration request with the following directions:- 1. The Kerala High Court Arbitration Centre is directed to nominate a District Judge (Retd.) from Panel-III, as the sole Arbitrator to resolve the disputes that have arisen between the petitioner and the respondents under Annexure A2 Agreement. 2. The learned Arbitrator may entertain all issues between the parties in connection with the said Agreements, including questions of jurisdiction and limitation, if any, raised by the parties. All contentions of the parties are left open and they are at liberty to raise their claims and counterclaims, if any, before the learned Arbitrator, in accordance with law. 3. The Registry shall communicate the substance of this order to the Kerala High Court Arbitration Centre within ten days and the Centre shall inform the learned Arbitrator within a further period of one week and shall obtain duly signed Form 3 as required under Rule 20(4) of the Kerala High Court (Arbitration Centre) Rules, 2025 and forward the same to this Court. 4. Upon receipt of the Form 3, the Registry shall issue a certified copy of this order with a copy of the Form 3 appended to the Kerala High Court Arbitration Centre. The original of the Disclosure Statement shall be retained by the Kerala High Court Arbitration Centre. 5. The fees of the learned Arbitrator of the Kerala High Court Arbitration Centre shall be governed by Rule 28 of the Kerala High Court (Arbitration Centre) Rules, 2025 . The manner in which the fees and costs payable by the parties shall be governed by Rule 27 of the . 6. If the learned Arbitrator needs the assistance of an expert, then he is at liberty to seek such assistance in the course of the arbitration proceedings.