CIVIL APPEAL None

IN THE HIGH COURT OF DELHI AT NEW DELHI+ ARB.P. 1337/2024

GLOBE CIVIL PROJECTS PRIVATE LIMITED .....Petitioner

Through: Mr. Ankur Mahindro, Mr. Rohan Taneja, Mr. Aditya Kapur & Mr. Raghav Kalra, Advs. Taneja, Mr. Aditya Kapur & Mr. Raghav Kalra, Advs.

versus

GOVERNMENT OF NCT OF DELHI

.....Respondent

Through: Ms. Astha Gupta, Adv.

CORAM:HON'BLE MR. JUSTICE JASMEET SINGH

O R R% 29.04.2025

1.This is petition under Section 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of an Arbitrator. Act, 1996, seeking appointment of an Arbitrator.

2.The brief facts are that the respondent invited tender for construction of 200 Bedded Hospital at Kaushik Enclave, Burari, Delhi. (SH- Hospital Block, RMO Hostel and Staff Quarters including Internal water supply, Sanitary installation, External Drainage and Water Supply, Rain Harvesting, Tube Well, STP, Site Development, Internal Electrical Installations, Piping for Fire Fighting & External Electrical Lighting Works). construction of 200 Bedded Hospital at Kaushik Enclave, Burari, Delhi. (SH- Hospital Block, RMO Hostel and Staff Quarters including Internal water supply, Sanitary installation, External Drainage and Water Supply, Rain Harvesting, Tube Well, STP, Site Development, Internal Electrical Installations, Piping for Fire Fighting & External Electrical Lighting Works).

3.The parties entered into an Agreement on 24.01.2023, being Agreement No.20/EE(C)/B- 233/PWD/2013-14. Agreement No.20/EE(C)/B- 233/PWD/2013-14.

4.Since there were disputes, the petitioner invoked Arbitration under Clause 25 of the Agreement and upon mutual consent, appointed one Mr. Arvind Kumar Agrawal as the Arbitrator, for adjudication of claims. Clause 25 of the Agreement and upon mutual consent, appointed one Mr. Arvind Kumar Agrawal as the Arbitrator, for adjudication of claims.

5.On 04.03.2024, the petitioner referred 04 fresh claims, arising out of the same cause of action to the Executive Engineer, which were disallowed. the same cause of action to the Executive Engineer, which were disallowed.

6.On 02.05.2024, the petitioner/ claimant made an application for filing additional claims, which was rejected by the learned Arbitrator on the ground that the Arbitrator could adjudicate only those claims that have been referred to it. additional claims, which was rejected by the learned Arbitrator on the ground that the Arbitrator could adjudicate only those claims that have been referred to it.

7.Simultaneously, on 02.05.2024, the Executive Engineer rejected these 4 claims of the petitioner. 4 claims of the petitioner.

8.Further on 15.05.2024 and on 10.06.2024, the Superintending Engineer and the Chief Engineer rejected the additional claims of the petitioner respectively. Engineer and the Chief Engineer rejected the additional claims of the petitioner respectively.

9.Thereafter, on 12.07.2024, the petitioner invoked the arbitration clause. clause.

10.Ms. Gupta, learned counsel appears for the respondent and states that once the learned Arbitrator has refused amendment/ addition of subsequent claims, the only remedy available to the petitioner is to file petition under Section 34 of Arbitration and Conciliation Act, 1996, after the arbitration process is over and final award has been passed. once the learned Arbitrator has refused amendment/ addition of subsequent claims, the only remedy available to the petitioner is to file petition under Section 34 of Arbitration and Conciliation Act, 1996, after the arbitration process is over and final award has been passed.

11.She further states that adjudication of additional claims on account of inadvertence is not matter of right for the petitioner. She relies on the judgment of Co-ordinate Bench in “NTPC Limited vs. Starcon inadvertence is not matter of right for the petitioner. She relies on the judgment of Co-ordinate Bench in “NTPC Limited vs. Starcon

Infra Projects India Private Limited” 2025:DHC:1572 dated 07.03.2025 and more particularly para 22 to 24, which reads as under:

“22. Coordinate Bench of this Court in Punit A. Bhardwaj v. Rashmi Juneja, 2022 SSC OnLine Del 2691, while deciding challenge under Section 34 of the Arbitration & Conciliation Act to an order passed by the Tribunal rejecting an application for amendment of the claims has held that an application under Section 23(3) of the Arbitration & Conciliation Act does not amount to an interim award. Paragraph 18 of the said judgment reads as

under:-

“18. The three judgments of this Court cited by learned counsel for the parties must be read in the context of this provision. The statute clearly vests discretion in the arbitral tribunal to disallow party to amend or supplement its pleadings on the ground that the application is belated. In Container Corporation [Container Corporation of India Ltd. v. Texmaco Limited: 2009 SCC OnLine Del 1594], the amendment was rejected by the arbitral tribunal on this ground and the challenge under Section 34 of the Act was held not to be maintainable. In Cinevistaas [Cinevistaas Ltd. v. Prasar Bharti: O.M.P. (COMM) 31/2017, decided on 12.02.2019] and Lt. Col. H.S. Bedi Retd [Lt. Col. H.S. Bedi Retd v. STCI Finance Limited: O.M.P. (COMM) 546/2020, decided on 07.12.2020] on the other hand, the Court came to the

conclusion that the rejection of the amendments were in the nature of final adjudication of the claims and defences proposed to be raised. It is this factor which clothed the orders of the tribunal with the characteristic of finality and rendered them susceptible to challenge as interim awards. This distinction, in my view, is the key to determining the maintainability of the present petition.”

23. It is always open for the Petitioner herein to challenge the award on the ground that the Arbitrator did not have the jurisdiction to entertain dispute beyond Rs. 25 crores. It is pertinent to mention that the Arbitrator has rejected the application, on reading of the arbitration clause stating that once the arbitration has been invoked, then no party is allowed to amend the claims, on the ground that the Petitioner is considered to have given up his right to pursue the Counter Claims at any other forum.

24. This Court is not making any comment on the said finding of the learned Arbitrator, leaving it open for the Petitioner herein to challenge the same after the award is pronounced. This Court is rejecting the present petition only on the short ground that an order dismissing an application under Section 23(3) of the Arbitration & Conciliation Act is only procedural order and does not qualify as an „interim award‟ amenable to challenge under Section 34 of the

Arbitration & Conciliation Act.”

12.I have heard learned counsel for the parties.

13.In the present case, the arbitration clause reads as under Clause 25:

“Clause 25

.......

(ii)Except where the decision has become final, binding and conclusive in terms of Sub Para (i) above, disputes or difference shall be referred for adjudication through arbitration by sole arbitrator appointed by the Chief Engineer, CPWD, in charge of the work or if there is no Chief Engineer, the Additional Director General of the concerned region of CPWD or if there be no Additional Director General, the Director General of Works, CPWD. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever, another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor.

It is term of this contract that the party invoking arbitration shall give list of disputes with amounts claimed in respect of each such dispute alongwith the notice for appointment of arbitrator and giving reference to the rejection by the Chief Engineer of the appeal.

It is also term of this contract that no person, other than person appointed by such Chief Engineer CPWD or Additional Director or Director General of works, CPWD, as aforesaid, should act as arbitrator and if for any reason that is not possible, the matter shall not be referred to arbitration at all.

It is also term of this contract that if the contractor does not make any demand for appointment of arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Engineer-in-charge that the final bill is ready for payment, the claim of the contractor shall be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the contract in respect of these claims.

The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modifications or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause.

It is also term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs. 1,00,000/-, the arbitrator shall give reasons for the award.

It is also term of the contract that if any fees are payable to the arbitrator, these shall be paid equally by both the

parties.

It is also term of the contract that the arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties calling them to submit their statement of claims and counter statement of claims. The venue of the arbitration shall be such place as may be fixed by the arbitrator in his sole discretion. The fees, if any, of the arbitrator shall, if required to be paid before the award is made and published, be paid half and half by each of the parties. The cost of the reference and of the award (including the fees, if any, of the arbitrator) shall be in the discretion of the arbitrator who may direct to any by whom and in what manner, such costs or any part thereof shall be paid and fix or settle the amount of costs to be so paid.”

14.The petitioner had already approached the Executive Engineer on 04.03.2024, the Superintending Engineer on 26.04.2024 and the Chief Engineer on 23.05.2024. 04.03.2024, the Superintending Engineer on 26.04.2024 and the Chief Engineer on 23.05.2024.

15.The learned Arbitrator, on 02.05.2024, rejected the additional claims of the petitioner by holding as under: of the petitioner by holding as under:

“9. The claimant may note that, the as per the term of this contract as per clause 25 of GCC, only those claims which have been referred to the Arbitrator can be adjudicated. Accordingly, unless the additional claims are referred to the Arbitrator, the same cannot be taken up for adjudication.” contract as per clause 25 of GCC, only those claims which have been referred to the Arbitrator can be adjudicated. Accordingly, unless the additional claims are referred to the Arbitrator, the same cannot be taken up for adjudication.”

16.The Chief Engineer on 10.06.2024 held as under:

17.In the present case the Arbitration Clause shows that the disputes

between the parties have to be referred to arbitration. reading of the arbitration clause quoted above, to my mind, does not preclude the petitioner from raising additional claims.

18.The reliance of the counsel for the petitioner on “Airone Charters Pvt.

This is digitally signed order.The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.The Order is downloaded from the DHC Server on 30/06/2025 at 23:51:03

Ltd. Vs. Jetsetgo Aviation Services Pvt. Ltd.” 2021 SCC OnLine Del 4693 and more particularly para 89 is relevant, where it reads as under:

“89. Of course, in the present case, as I have already noted, the contract between the parties did not require all disputes to be included in the notice invoking arbitration, unlike the situation which existed in Dolphin Drilling. There was no embargo, therefore, on the petitioner referring its claims to arbitration at later stage – or even at much later stage – provided the claims were within time.” the contract between the parties did not require all disputes to be included in the notice invoking arbitration, unlike the situation which existed in Dolphin Drilling. There was no embargo, therefore, on the petitioner referring its claims to arbitration at later stage – or even at much later stage – provided the claims were within time.”

19.In the present case if there were disputes the petitioner was first required to raise the same before the Executive Engineer, Superintending Engineer and then the Chief Engineer. The petitioner duly completed the said exercise and once the Chief Engineer being member of the DRC refused to entertain the same the petitioner had no option but to invoke the arbitration clause. required to raise the same before the Executive Engineer, Superintending Engineer and then the Chief Engineer. The petitioner duly completed the said exercise and once the Chief Engineer being member of the DRC refused to entertain the same the petitioner had no option but to invoke the arbitration clause.

20.The additional claims of the petitioner are arising out of the same cause of action as the earlier referred 9 claims and are also prima facie to be decided by the Arbitrator. cause of action as the earlier referred 9 claims and are also prima facie to be decided by the Arbitrator.

21.Additionally, perusal of the arbitration clause does not put an embargo on the petitioner referring its additional claims to arbitration at later stage provided the same are not barred by limitation. All the additional claims of the petitioner seem to be within limitation. embargo on the petitioner referring its additional claims to arbitration at later stage provided the same are not barred by limitation. All the additional claims of the petitioner seem to be within limitation.

22.For the said reasons, I am of the view that there is no embargo and thus I am inclined to allow the petition. thus I am inclined to allow the petition.

23.The additional disputes/claims raised by the petitioner are referred to the same Arbitrator, who is adjudicating the disputes between the the same Arbitrator, who is adjudicating the disputes between the

parties.

24.The four additional claims made are as under:

25.All objections of the respondent are left open, including the maintainability and limitation of the additional claims. maintainability and limitation of the additional claims.

26.With these observations, the petition is disposed of in the abovesaid terms. terms.

APRIL 29, 2025/pk

JASMEET SINGH, J

Click here to check corrigendum, if any