TaxTMI 
TaxTMI 
2020 (10) TMI 1371
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....d RFQ. The petitioner submitted its technical and financial bids, and, in the evaluation procedure that followed, the petitioner was found eligible and was accordingly awarded the concession referred above. Consequently, the parties executed the Letter of Intent to Award [LOIA] dated 7.12.2017, and the Concession Agreement dated 22.3.2018, containing the terms and conditions of the contract between them. 2. It is the case of the petitioner that since the inception of the Project, various acts of omission and commission on the part of the respondent resulted in a delay for operationalization of the Project. As a result of the aforesaid delay, the services in respect of some of the F&B outlets were delayed till 11.6.2018, and BCAS clearance for the F&B outlets was obtained only by 20.7.2018. It is stated that the petitioner could not commence commercial operations before the said date, and hence, there was no occasion to raise any invoice in respect of the period prior to 20.7.2018. The petitioner alleges, however, that the respondent wrongfully, and in breach of the terms of the Concession Agreement, raised invoices in the month of September, 2018 with effect from 6.4.2018. Altho....
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....emature and not maintainable. 5. I have heard the learned senior counsel Sri. S. Sreekumar, assisted by Sri. P. Martin Jose, on behalf of the petitioner and the learned senior counsel Sri. N.N. Sugunapalan, assisted by Sri. V. Santharam, on behalf of the respondent. 6. Before adverting to the rival submissions, it would be apposite to notice the relevant clauses in the RFP and the Concessionaire agreement, that have a bearing on the issue that has to be decided in this case. These are enumerated below: Request for Proposal [RFP] 5.15 Dispute Resolution All disputes and differences arising out of or in any way touching or concerning this Concession Agreement shall in the first place be tried through mutual consensus within the definitions and interpretations provided herein within a period of thirty (30) days from the date on which the Concessionaire has sought resolution of the dispute from Authority. If the dispute involves financial implication above Rs. 7,00,000/- (Rupees seven lakhs) the Concessionaire would be free to seek Arbitration under Arbitration and Conciliation Act 1996 duly amended from time to time. The Concessionaire by means of a wr....
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....is agreement, the provisions of specific Articles relevant to the issue under consideration shall prevail over those in other Articles; (b) Between any value written in numerals and that in words, the latter shall prevail. ARTICLE-22 [DISPUTE RESOLUTION] 22.1 Dispute resolution 22.1.1 Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the parties, and so notifies in writing by either party to the other party (except those the decision whereof is otherwise herein before expressly provided for or to which the public premises (eviction of Unauthorized Occupants) Act, 1971 and the rules framed thereunder which are now enforced or which may hereinafter come into force are applicable) (the "Dispute") shall, in the first instance, be attempted to be resolved amicably through mutual consensus for the disputes with financial implication up to Rs. 7,00,000/- (Rupees seven lakhs). The parties agree to use their best efforts for resolving all disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and....
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....naire and the Authority, all disputes arising after such constitution shall, instead of reference to adjudication under clause 22.3, be adjudicated upon by such Regulatory Authority or Commission in accordance with the applicable Law and all references to Dispute Resolution Procedure shall be construed accordingly. For the avoidance of doubt, the parties hereto agree that the adjudication hereunder shall not be final and binding until an appeal against such adjudication has been decided by an appellate tribunal or judicial court, as the case may be, or no such appeal has been preferred within the time specified in the Applicable Law. 7. The submissions of the learned senior counsel Sri. S. Sreekumar, on behalf of the petitioner, briefly stated, are as follows: * That on a reading of Article 1.2 of the Concessionaire Agreement, it becomes apparent that while the RFP would form part of the Concessionaire Agreement, in the event of a conflict in the clauses in the RFP and the Concessionaire Agreement, priority has to be accorded to the clauses in the concessionaire agreement, and viewed thus, Article 22 of the Concessionaire Agreement has to be seen as the Arbitration Agre....
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....FP details the preconditions to be fulfilled for invoking the remedy of arbitration. It is his contention that there is nothing wrong in an agreement between the parties providing for one party to comply with certain procedures as a precondition for invoking the arbitration agreement subsisting between the parties. * He relies on the decision in S.K. Jain v. State of Haryana-[(2009) 4 SCC 357] to contend that the Supreme Court had, in that case, found a clause, that required the party invoking arbitration to make a security deposit of an amount as a precondition for invoking the arbitration agreement, on condition that the said amount would be refunded to him if he succeeded in the action, as not illegal. It is further pointed out that the said judgment of the Supreme Court was approved in a later judgment reported as ICOMM Tele Ltd. v. Punjab State Water Supply and Sewerage Board and Anr.-[(2019) 4 SCC 401], where the court justified the former decision as rendered in circumstances where there was no challenge to the clause concerned, as violative of Article 14 of the Constitution. He contends that in the absence of a challenge to clause 5.15 of the RFP as violative of Ar....
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....hat of India and the jurisdiction to be in the Courts at Manjeri, Kerala. It is apparent therefore that while the clauses in the RFP, while dealing with a particular subject, were tentative in nature, and for the purposes of inviting the bids from tenderers, the final terms and conditions that would bind the parties to the contract had to be found in the Concessionaire Agreement that was eventually entered into between the parties. Article 1.2 of the Concessionaire Agreement only provides a clarification as to the course of action to be adopted in the event of a conflict between the clauses in the Concessionaire Agreement and corresponding clauses in the other documents that were intended to form part of the Concessionaire Agreement. Viewing clause 5.15 of the RFP and Article 22 of the Concessionaire Agreement, in the said backdrop, the inference must necessarily be that both the clauses deal with the manner of dispute resolution, and if that be the case, then, by virtue of Article 1.2 of the Concessionaire Agreement, Article 22 of the said Agreement must be seen as constituting the Arbitration Agreement between the parties. 11. Even if one were to treat clause 5.1 of the RFP as....
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.... and differences between the parties herein. (b) Communication to Arbitrator of this order: (i) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the petitioner within one week from today of the order being uploaded. (ii) In addition, within one week of this order being uploaded, the Registry will forward an ordinary copy of this order to the learned Sole Arbitrator at the following postal and email addresses: Arbitrator Justice (Retd.) Sri.T.R.Ramachandran Nair Former Judge, High Court of Kerala Address Thekkedath House House No.60/2783, Diwan's Road, Ernakulam, Kochi - 682 016. Mobile 9447090104 (c) Disclosure: The learned Sole Arbitrator is requested to forward his statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to the Registrar of this Court, referencing this arbitration application, as soon as possible, and in any case sufficiently in advance of his entering upon the reference to his arbitration. That statement will be retained by the Registrar on the file of this application. Copies will be given to both sides. (....