C.RAGHAVAN Vs. SOUTHERN RAILWAY

JUDGEMENT

(1.) SINCE the issues raised in these applications are connected, these cases were heard together and are disposed of by this common judgment treating A.R.18/2012 as the leading case. Facts stated hereunder are those pleaded in the leading case.

(2.) THESE applications are filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996. The respondents awarded to the applicant in A.R.18/2012, the work of "proposed construction of 1X20.00m clear span PSC "1" Girder and 2X15.00m clear span PSC "1" Girder Road Over Bridge in lieu of existing level crossing No.159 at Km 531/8-10 (Malampuzha Road) in between KANJIKODE and PALGHAT Jn". The tender in this regard was opened on 18.08.2005 and after negotiations that were held on 12.12.2005, letter of acceptance was issued to the applicant on 15.03.2006. Subsequently, agreement dated 05.12.2006 was entered into between the parties with a completion period of 10 months. However, the work was completed only on 16.02.2009. Though the total value of the work awarded was Rs.1,70,85,585.00, the value of the works executed was Rs.1,44,95,813.00.

(3.) CONTENTION raised by the counsel for the applicant is that in view of the principles laid down by the Apex Court, the question whether the claims are covered by "excepted matters" as mentioned in Annexure-A9, is also a matter to be decided by the Arbitral Tribunal and not by one of the parties to the agreement. However, the stand taken by the respondents is that if, in the agreement between the parties, since the claims, the reference of which is sought, are excepted from the purview of arbitration, the applicant cannot seek a reference and that in such a case, the question of reference does not arise. In support of this proposition, learned senior counsel for the respondents relied on the Apex Court judgments in General Manager, Northern Railway and Another v. Sarvesh Chopra (2002(4) SCC 45) and Union of India and Another v. Raunaq International Ltd(2008 KHC 4683).