INDIAN OIL CORPORATION LIMITED versus NCC LIMITED

[2022] 13 S.C.R.

AINDIAN OIL CORPORATION LIMITED

NCC LIMITED

(Civil Appeal No. 341 of 2022)

BJULY 20, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Arbitration and Conciliation Act, 1996 – ss.11(6), 11(6-A),16 – High Court in exercise of powers u/s.11(6) appointed theArbitrators to adjudicate and resolve the disputes between theCparties arising out of the respective contracts – Correctness of –Held: The issue w.r.t ‘accord and satisfaction’ of claims is seriouslydisputed and is debatable – Whether, in view of the acceptance ofRs.4,53,04,021/- by the respondent which was released by petitioneron the offer/letter made by the respondent there is an instance ofD‘accord and satisfaction’ of the claims is good and reasonablyarguable case – It cannot be said to be an open and shut case –Therefore, even when it is observed and held that such an aspectwith regard to ‘accord and satisfaction’ of the claims may/can beconsidered by the Court at the stage of deciding s.11 application, itis always advisable and appropriate that in cases of debatable andEdisputable facts, good reasonably arguable case, the same shouldbe left to the Arbitral Tribunal – Therefore, High Court committedno error in observing that aspects with regard to ‘accord andsatisfaction’ of the claims or where there is serious dispute willhave to be left to the Arbitral Tribunal – However, at the same time,Fthe conclusion arrived at by the High Court that after the insertionof Sub-Section (6-A) in s.11 scope of inquiry by the Court in petitionis confined only to ascertain as to whether or not bindingarbitration agreement exists qua the parties before it, which isrelatable to the disputes at hand is not agreed with – Though, theArbitral Tribunal may have jurisdiction and authority to decide theGdisputes including the question of jurisdiction and non-arbitrability,the same can also be considered by the Court at the stage of decidings.11 application, if the facts are very clear and glaring and in viewof the specific clauses in the agreement binding between the parties,whether the dispute is non--arbitrable and/or it falls within theHexcepted clause – Even at the stage of deciding s.11 application,

the Court may prima facie consider even the aspect with regard to‘accord and satisfaction’ of the claims – In Civil Appeal No.341/2022, the Arbitrator shall first decide the aspect with regard to‘accord and satisfaction’ of the claims and arbitrability of thedisputes with regard to such claims by deciding an application u/s.16 which is reportedly pending – Arbitrator shall first decide thejurisdiction of the Arbitral Tribunal and the arbitrability of the claims– In Civil Appeal No.342/2022, impugned judgment and orderpassed by the High Court referring the dispute between the partiesto arbitration and appointing the Arbitrator is set aside – Similarly,in Civil Appeal No.343/2022, , the impugned judgments and ordersare set aside – Further, in Civil Appeal No.344/2022, impugnedjudgment and order passed by the High Court is modified – Onlyone claim of the respondent which is declared by the GeneralManager as Notified Claim shall have to be referred to arbitrationand the Arbitrator shall adjudicate only that claim which is declaredby the General Manager as Notified Claim and the ArbitralTribunal shall not have any jurisdiction to adjudicate on any otherclaims which as such are not declared as Notified Claims.

Disposing of the appeals, the Court

HELD: 1.1 It is the case on behalf of the petitioner IOCLthat the IOCL had settled the claim of respondent – NCCLaccepting NCCL’s offer to grant extension of time; not to giveprice adjustment of over 4% of the total contract value andconsequently IOCL condoned the delay of 1493 days and grantedextension of time without applying any price discount. Furtherfor the delay of 65 days, IOCL applied the price discount ofRs.6,44,40,021/- i.e. 4% of the total value of contract andthereafter IOCL released the payment of Rs.4,53,04,021/- againstNCCL’s final bill (adjusting price discount of Rs.6.4 Crores asagainst Rs.14.8 Crores) and also returned NCCL’s BankGuarantee which came to be fully accepted by the respondentNCCL. It is the case of IOCL that thereafter, it was not open forthe respondent to raise any further claim. Therefore, it is thecase on behalf of the petitioner that, there being ‘accord andsatisfaction’ for the claim, being an ‘excepted claim’, it was notopen for the respondent to invoke the arbitration agreement andrequest for appointment of an Arbitrator. It is also the case on

ABC

Abehalf of the petitioner IOCL that in view of the specific decisionsby the General Manager, on “Notified Claims”, in view of Clause9.0.2.0, for the same claims which are not held to be ‘NotifiedClaims’ by the General Manager, the matter cannot be referredto the Arbitrator in view of the clause pertaining to excludedmatters. On the other hand, it is the case on behalf of theBrespondent that acceptance of the amount of Rs.4,53,04,021/-was under duress and coercion. It is also the case on behalf ofthe respondent that earlier offer dated 02.11.2016 was aconditional one and was in the nature of an offer and subsequentlywhen the offer was partially allowed, the respondent without anyCdelay communicated that the decision to partially allow itsapplication for EOT is unacceptable as the same is not inaccordance with the conditional offer given by the respondent.[Para 12][703-E-H; 704-A-C]

1.2 Having heard learned Counsel appearing for theDrespective parties and in the facts and circumstances of the case,the issue / aspect with regard to ‘accord and satisfaction’ of claimsis seriously disputed and is debatable. Whether, in view of theacceptance of Rs.4,53,04,021/- by the respondent NCCL whichwas released by IOCL on the offer / letter made by the respondentNCCL dated 02.11.2016 there is an instance of ‘accord andEsatisfaction’ of the claims is good and reasonably arguable case.It cannot be said to be an open and shut case. Therefore, evenwhen it is observed and held that such an aspect with regard to‘accord and satisfaction’ of the claims may/can be considered bythe Court at the stage of deciding Section 11 application, it is

Falways advisable and appropriate that in cases of debatable anddisputable facts, good reasonably arguable case, the same shouldbe left to the Arbitral Tribunal. Similar view is expressed by thisCourt in the case of Vidya Drolia (supra). Therefore, in the factsand circumstances of the case, though it is specifically observed

and held that aspects with regard to ‘accord and satisfaction’ ofGthe claims can be considered by the Court at the stage of decidingSection 11(6) application, in the facts and circumstances of thecase, the High Court has not committed any error in observingthat aspects with regard to ‘accord and satisfaction’ of the claimsor where there is serious dispute will have to be left to theH

Arbitral Tribunal. However, at the same time, we do not agreewith the conclusion arrived at by the High Court that after theinsertion of Sub-Section (6-A) in Section 11 of the ArbitrationAct, scope of inquiry by the Court in Section 11 petition is confinedonly to ascertain as to whether or not binding arbitrationagreement exists qua the parties before it, which is relatable tothe disputes at hand. We are of the opinion that though the ArbitralTribunal may have jurisdiction and authority to decide the disputesincluding the question of jurisdiction and non-arbitrability, thesame can also be considered by the Court at the stage of decidingSection 11 application if the facts are very clear and glaring andin view of the specific clauses in the agreement binding betweenthe parties, whether the dispute is non-arbitrable and/or it fallswithin the excepted clause. Even at the stage of deciding Section11 application, the Court may prima facie consider even the aspectwith regard to ‘accord and satisfaction’ of the claims. [Para13][705-C-H; 706-A-C]

1.3 Now, so far as the submission on behalf of the respectiveparties on the decision of the General Manager on Notified Claimsin Civil Appeal No.341/2022 arising out of SLP (C) No.13161/2019 is concerned, the General Manager has decided / declaredthat the claims are not arbitrable since they had been settled andthe arbitration agreement has been discharged under Clause6.7.2.0 of the GCC and no longer existed / subsisted. As observedhereinabove, the claims had been settled or not is debatableand disputable question, which is to be left to be decided by theArbitral Tribunal. Therefore, matters related to the NotifiedClaims in the facts and circumstances of the case also shall haveto be left to be decided by the Arbitral Tribunal as in the factsituation the aspect of ‘accord and satisfaction’ and ‘NotifiedClaims’ both are interconnected and interlinked. Now, so far asthe Civil Appeal No.342/2022 arising out of SLP (C) No.13816/2019 is concerned, the General Manager in exercise of powersunder Clause 9.0.2.0 had declared that none of the claims of therespondent is Notified Claim. From the communication dated22.06.2018, it appears that the General Manager, after elaboratelydealing with all the alleged Notified Claims of the respondenthas thereafter found that none of the claims made by therespondent is Notified Claim. On conjoint reading of the

Arelevant clauses of the GCC viz. Clauses 9.0.1.0 and 9.0.2.0, thedispute arising out of Notified Claims only, which is included inthe Final Bill of the contractor can be referred to arbitration.However, as per Clause 9.0.2.0, any dispute or difference onwhether or not claim sought to be referred to arbitration by thecontractor is Notified Claim falls within the excluded mattersBand the Arbitrator or Arbitral Tribunal shall have no jurisdictionand/or authority with respect thereto. The dispute or differencewhether or not claim sought to be referred to arbitration by thecontractor is Notified Claim shall not and cannot form the subjectmatter of any reference or submission to arbitration. Therefore,Con fair and conjoint reading of Clause 9.0.1.0 and 9.0.2.0, it cansafely be concluded that (i) only the Notified Claims of thecontractor included in the Final Bill of the contractor inaccordance with the provisions of Clause 6.6.3.0 shall have to bereferred to arbitration; (ii) whether or not claim sought to bereferred to arbitration by the contractor is Notified Claim orDnot, the Arbitrator or Arbitral Tribunal shall have no jurisdictionat all; (iii) whether or not claim is Notified Claim or not shallhave to be decided by the General Manager and that too, prior toarbitration proceeding with or proceeding further with thereference. Therefore, once the General Manager, on the basis ofEthe material on record takes conscious decision that particularclaim sought to be referred to arbitration is not Notified Claim,such claim thereafter cannot be referred to arbitration. Thelanguage used in Clauses 9.0.1.0 and 9.0.2.0 is very clear andunambiguous. As observed hereinabove, parties to the contractare free to agree on applicability of (1) proper law of contract, (2)Fproper law of arbitration agreement and (3) proper law of theconduct of arbitration. Parties to the contract also may agree formatters excluded from the purview of arbitration. As observedby this Court in catena of decisions, unless the effect ofagreement results in performance of an unlawful act, anGagreement, which is otherwise legal, cannot be held to be voidand is binding between the parties. At this stage, the decision ofthis Court in the case of Sreekanth Transport (supra) is requiredto be referred to. In the case before this Court, the contractprovided for exclusion of some matters from the purview ofarbitration. senior officer of the department was given theH

authority and power to adjudicate the same. One of the clausesprovided that the decision of the Senior Officer, being theAdjudicator, shall be final and binding between the parties. ThisCourt considered the same as ‘excepted matters’. [Para 13.1-13.3][706-C-H; 707-A-G]

1.4 In that view of the matter, the High Court has misreadand misinterpreted the clauses 9.0.1.0 and 9.0.2.0 and hasseriously erred in holding that where there is contestation or thedecision rendered by the General Manager leaves scope forargument as to whether the claims alleged by the contractor canbe categorized as Notified Claim is best left to the ArbitralTribunal. The dispute whether the claim is Notified Claim ornot is specifically excluded from the scope, purview and ambit ofthe arbitration agreement. Therefore, once such dispute fallswithin the ‘excepted matters’, any decision by the GeneralManager on the issue of Notified Claims cannot be the subjectmatter of arbitration proceeding. Therefore, the High Court haserred in referring the dispute to arbitration and appointing soleArbitrator to adjudicate on the dispute with respect to the claimswhich as such are held to be not Notified Claims by the GeneralManager. Therefore, the Civil Appeal No.342/2022 arising outof SLP (C) No.13408/2019 as well as Civil Appeal Nos.343/2022and 345/2022 arising out of SLP (C) Nos.13813/2019 and 13816/2019 respectively deserve to be allowed and the impugnedjudgment and orders passed by the High Court in respectivearbitration petitions deserve to be quashed and set aside. [Paras13.4, 13.5][708-C-G]1.5 In view of the above and for the reasons stated above,following order is passed.

(1) Civil Appeal No.341/2022 arising out of the impugnedjudgment and order passed by the High Court in ArbitrationPetition No.115/2018 is hereby dismissed. However, it is observedthat the learned Arbitrator shall first decide the aspect with regardto ‘accord and satisfaction’ of the claims and arbitrability of thedisputes with regard to such claims by deciding an applicationunder Section 16 of the Arbitration Act, which is reported to bepending. The learned Arbitrator shall first decide the jurisdictionof the Arbitral Tribunal and the arbitrability of the claims within

Aperiod of three months from the date of first sitting which shallbe within period of one month from today. All the contentionsand/or defences which may be available to the respective partiesare kept open to be considered by the learned Arbitrator inaccordance with law and on its own merits and considering therelevant clauses of the contract and the material on record.B

(2) Civil Appeal No.342/2022 arising out of the impugnedjudgment and order passed by the High Court in ArbitrationPetition No.356/2018 is hereby allowed. Impugned judgment andorder passed by the High Court in Arbitration Petition No.356/2018 referring the dispute between the parties to arbitration andCappointing the Arbitrator is hereby quashed and set aside.

(3) Similarly, Civil Appeal No.343/2022 arising out of theimpugned judgment and order passed by the High Court inArbitration Petition No.116/2018 and Civil Appeal No.345/2022arising out of the impugned judgment and order passed by theDHigh Court in Arbitration Petition No.406/2018 are allowed andconsequently, the impugned judgments and orders passed by theHigh Court in Arbitration Petition Nos.116/2018 & 406/2018 arehereby quashed and set aside.

(4) So far as Civil Appeal No.344/2022 arising out of theEimpugned judgment and order passed by the High Court inArbitration Petition No.407/2018 is concerned, the same is partlyallowed. The impugned judgment and order passed by the HighCourt in Arbitration Petition No.407/2018 is hereby modified tothe extent and it is directed that only one claim of the respondentFwhich is declared by the General Manager as Notified Claimshall have to be referred to arbitration and the learned Arbitratorshall adjudicate only that claim which is declared by the GeneralManager as Notified Claim and the learned Arbitral Tribunalshall not have any jurisdiction to adjudicate on any other claimswhich as such are not declared as Notified Claims. [Para 14][709-GB-H; 710-A-D]

Centrotrade Minerals & Metal Inc. v. Hindustan CopperLtd. (2017) 2 SCC 228 : [2016] 9 SCR 83; UnitedIndia Insurance Co. Ltd. v. Hyundai Engg. &Construction Co. Ltd. (2018) 17 SCC 607 : [2018] 12HSCR 1085; Duro Felguera S.A. v. Gangavaram Port

Limited (2017) 9 SCC 729 : [2017] 10 SCR 285; UnitedIndia Insurance Co. Ltd. v. Antique Art Exports (P) Ltd.(2019) 5 SCC 362 : [2019] 5 SCR 521; MayavatiTrading Private Limited v. Pradyuat Deb Burman (2019)8 SCC 714 : [2019] 12 SCR 123; Vidya Drolia vs DurgaTrading Corporation (2021) 2 SCC 1; Swiss TimingLimited v. Commonwealth Games 2010 OrganizingCommittee (2014) 6 SCC 677 : [2014] 6 SCR 514;Ambica Construction v. Union of India (2006) 13 SCC475 : [2006] 9 Suppl. SCR 188; R.L. Kalathia & Co. v.State of Gujarat (2011) 2 SCC 400 : [2011] 1 SCR 391;BSNL v. Motorola India (P) Ltd. (2009) 2 SCC 337 :[2008] 13 SCR 445; National Insurance Co. Ltd. v.Boghara Polyfab Pvt. Ltd. (2009) 1 SCC 267 :[2008]13 SCR 638; Zostel Hospitality (P) Ltd. v. Oravel Stays(P) Ltd. (2021) 9 SCC 765; Datar Switchgears Ltd. v.Tata Finance Ltd. (2000) 8 SCC 151; DLF UniversalLtd. & Anr. v. Director, Town and Country PlanningDepartment, Haryana & Ors. (2010) 14 SCC 1 : [2010]15 SCR 85; Rajasthan State Industrial Developmentand Investment Corporation & Anr. v. Diamond and GemDevelopment Corporation Ltd. & Anr. (2013) 5 SCC470 : [2013] 4 SCR 331 ; Booz Allen & Hamiltan Inc.v. SBI Home Finance Ltd. (2011) 5 SCC 532 : [2011] 7SCR 310; DLF Home Developers Limited v. RajapuraHomes Private Limited and Another 2021 SCC OnlineSC 781 – referred to.

[2022] 13 S.C.R.

From the Judgment and Order dated 08.02.2019 of the High Courtof Delhi at New Delhi in Arbitration Petition No.115 of 2018.

DWith

Civil Appeal Nos.342, 344, 343 and 345 of 2022.

K. K. Venugopal, AG, V. N. Koura, S. Sirish Kumar, AvneeshArputham for M/s Arputham Aruna and Co., Advs. for the Appellant.

Ranjit Kumar, Sr. Adv., K. Parameshwar, Amit George, A.ESregurupriya, Prasad Hegde, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.1. As common questions of law and facts arise in this group ofFappeals and as such between the same parties and with respect to similarcontracts / agreements, all these appeals are decided and disposed oftogether by this common judgment and order.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand orders passed by the High Court of Delhi, New Delhi in respect toGArbitration Petitions by which, in exercise of powers under Section 11(6)of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as“Arbitration Act”), the High Court has allowed the said petitions and hasappointed the learned Arbitrator by referring the dispute between theparties for arbitration, the Indian Oil Corporation Limited has preferredHthe present appeals.

3. For the sake of convenience, Civil Appeal arising out of SpecialLeave Petition No.13161/2019 arising out of the order passed by theHigh Court in Arbitration Petition No.115/2018 is treated as the leadmatter.

4. The facts leading to the present appeal in nut-shell are asunder:

4.1. That, the appellant, Indian Oil Corporation Limited (hereinafterreferred to as “IOCL”) floated tender in respect of the works describedas “Civil, Structural & Associated UG piping works of VGO-HDT,DHDT & HCDS Units (EPCM-2) for Paradip Refinery Project”. Therespondent herein – NCC Ltd. (hereinafter referred to as “NCCL”)was declared the successful bidder. After issuance of the Letter ofAcceptance dated 17.03.2010, formal agreement was executedbetween the parties dated 28.04.2010. The relevant clauses of theAgreement which may have bearing on the issues involved in thepresent appeals are as under:

“1.21.0.0“Notified Claim” shall mean claim of theCONTRACTOR notified in accordance with theprovisions of Clause 6.6.1.0 hereof.

xxx xxx xxx

CLAIMS BY THE CONTRACTOR

6.6.1.0

Should the CONTRACTOR consider that he isentitled to any extra payment or compensation inrespect of the works over and above the amountsdue in terms of the Contract as specified in Clause6.3.1.0 hereof or should the CONTRACTOR disputethe validity of any deductions made or threatened bythe OWNER from any Running Account Bills, theCONTRACTOR shall forthwith give notice in writingof his claim in this behalf to the Engineer-in-Chargeand the Site Engineer within 10 (ten) days from thedate of the issue of orders or instructions relative toany works for which the CONTRACTOR claimssuch additional payment or compensation or of thehappening of other event upon which theCONTRACTOR bases such claim, and such noticeshall give full particulars of the nature of such claim,

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Agrounds on which it is based, and the amount claimed.The OWNER shall not anywise be liable in respectof any claim by the CONTRACTOR unless noticeof such claim shall have been given by theCONTRACTOR to the Engineer-in-Charge and theSite Engineer in the manner and within the timeBaforesaid and the CONTRACTOR SHALL bedeemed to have waived any and all claims and all hisrights in respect of any claim not notified to theEngineer-in-Charge and the Site Engineer in writingin the manner and within the time aforesaid.

C6.6.2.0

The Engineer-in-Charge and/or the Site Engineer shallbe under no obligation to reply to any notice of claimgiven or claim made by the CONTRACTOR withinthe provisions aforesaid or otherwise or to reject thesame and no omission or failure on the part of theEngineer-in-Charge or Site Engineer to reject anyclaim made or notified by the CONTRACTOR ordelay in dealing therewith shall be deemed to be anadmission by the OWNER of the validity of suchclaim or waiver by the OWNER of any of its rightsin respect thereof, with the intent that all such claimsotherwise valid within the provisions of Clause 6.6.1.0read with Clauses 6.6.3.0 and 6.6.3.1 shall be dealtwith/considered by the OWNER at the time ofsubmission of the Final Bill.

6.6.3.0F

Any claims of the CONTRACTOR notified inaccordance with the provision of Clause 6.6.1.0hereof as shall remain at the time of preparation ofFinal Bill by the CONTRACTOR shall be separatelyincluded in the Final Bill prepared by theCONTRACTOR in the form of Statement ofClaims attached thereto, giving particulars of thenature of the claim, grounds on which it is based, andthe amount claimed and shall be supported by acopy(ies) of the notice(s) sent in respect thereof bythe CONTRACTOR to the Engineer-in-Charge andSite Engineer under Clause 6.6.1.0 hereof. In so far

as such claim shall in any manner or particular be atvariance with the claim notified by theCONTRACTOR within the provision of Clause6.6.1.0 hereof, it shall be deemed to be claimdifferent from the notified claim with consequencein respect thereof indicated in Clause 6.6.1.0 hereof,and with consequences in respect of the notified claimas indicated in Clause 6.6.3.1 hereof.

6.6.3.1The OWNER shall not anywise be liable in respectof any notified claim not specifically reflected in theFinal Bill in accordance with the provisions of Clause6.6.3.0 hereof and any and all notified claims notspecifically reflected and included in the Final Bill inaccordance with the provisions of Clause 6.6.3.0hereof shall be deemed to have been waived by theCONTRACTOR. Further the OWNER shall haveno liability in respect thereof and theCONTRACTOR shall not be entitled to raise orinclude in the Final Bill any claim(s) other than anotified claim conforming in all respects and inaccordance with the provisions of Clause 6.6.3.0hereof.

6.6.4.0

No claim(s) shall on any account be made by theCONTRACTOR after the Final Bill, with the intentthe Final Bill prepared by the CONTRACTOR shallreflect any and all notified claims whatsoever of theCONTRACTOR against the OWNER arising outof or in connection with the Contract or workperformed by the CONTRACTOR thereunder or inrelation thereto, and the CONTRACTOR shallnotwithstanding any enabling provision under any lawor Contract and notwithstanding any right of claim inquantum meruit that the CONTRACTOR could havein respect thereof, be deemed to have waived anyand all such claims not included in the Final Bill andto have absolved and discharged the OWNER fromand against the same, even if in not including thesame as aforesaid, the CONTRACTOR shall have

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Aacted under mistake of law or fact.6.6.5.0Notwithstanding the existence of any claim by theCONTRACTOR in terms hereof or otherwise, theCONTRACTOR shall continue and be bound tocontinue and perform the works to completion in allBrespects according to the Contract (unless theContract or works be priorly determined by theOWNER in terms hereof) and shall remain liable andbound in all respects under the Contract.

6.6.6.0The payment of any sum on account to theCONTRACTOR during the performance of anywork or item of work in respect of which claim hasbeen notified by the CONTRACTOR in terms ofClause 6.6.1.0 hereof or the making or negotiationof any interim arrangements in respect of theperformance of such work or item of work by theOWNER, shall not be deemed to be an acceptanceof the related claim by the OWNER, or any part orportion thereof with the intent that any such paymentshall constitute merely an interim facility or interimassistance to the CONTRACTOR, and not anobligation upon the OWNER.

6.7.0.0DISCHARGE OF OWNER’S LIABILITY6.7.1.0The acceptance by the CONTRACTOR of any

The acceptance by the CONTRACTOR of anyamount paid by the OWNER to the CONTRACTORin respect of the final dues of the CONTRACTORunder the Final Bill upon condition that the saidpayment is being made in full and final settlement ofall said dues to the CONTRACTOR shall, withoutprejudice to the notified claims of theCONTRACTOR included in the Final Bill inaccordance with the provisions under Clause 6.6.3.0hereof and associated provisions thereunder, bedeemed to be in full and final satisfaction of all suchdues to the CONTRACTOR notwithstanding anyqualifying remarks, protest or condition imposed orpurported to be imposed by the CONTRACTOR

6.7.2.0

6.7.3.0

relative to the acceptance of such payment, with theintent that upon acceptance by the CONTRACTORof any payment made as aforesaid, the Contract(including the arbitration clause) shall, subject to theprovisions of Clause 6.8.2.0 hereof, stand dischargedand extinguished except in respect of the notifiedclaims of the CONTRACTOR included in the FinalBill and except in respect of the CONTRACTOR’sentitlement to receive the unadjusted portion of theSecurity Deposit in accordance with the provisionsof Clause 6.8.3.0 hereof on successful completionof the defect liability period.The acceptance by the CONTRACTOR of anyamount paid by the OWNER to the CONTRACTORin respect of the notified claims of theCONTRACTOR included in the Final Bill inaccordance with the provisions of Clause 6.6.3.0hereof and associated provisions thereunder, uponthe condition that such payment is being made in fulland final settlement of all the claims of theCONTRACTOR shall, subject to the provisions ofClause 6.7.3.0 hereof, be deemed to be in full andfinal satisfaction of all claims of the CONTRACTORnotwithstanding any qualifying remarks, protest orcondition imposed or purported to be imposed by theCONTRACTOR relative to the acceptance of suchpayment with the intent that upon acceptance by theCONTRACTOR of any payment made as aforesaid,the Contract (including the arbitration clause) shallstand discharged and extinguished insofar as relatesto and/or concerns the claims of theCONTRACTOR.

Notwithstanding anything provided in Clause 6.7.1.0and/or Clause 6.7.2.0 hereof the CONTRACTORshall be and remain liable for defects in terms ofClause 5.6.0.0 hereof and for the indemnity to theOWNER in terms of Clause 6.8.2.0, and shall beand remain entitled to receive the unadjusted balance

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Aof the Security Deposit remaining in the hands of theOWNER in terms of Clause 6.8.3.0 hereof.

xxx xxx xxx

9.0.0.0ARBITRATION

B9.0.1.0Subject to the provisions of Clauses 6.7.1.0, 6.7.2.0and 9.0.2.0 hereof, any dispute arising out of NotifiedClaim of the CONTRACTOR included in the FinalBill of the CONTRACTOR in accordance with theprovisions of Clause 6.6.3.0 hereof, if theCONTRACTOR has not opted for the AlternativeCDispute Resolution Machinery referred to in Clause9.1.1.0 hereof, and any dispute arising out of anyClaim(s) of the OWNER against theCONTRACTOR shall be referred to the arbitrationof Sole Arbitrator selected in accordance with theDprovisions of Clause 9.0.1.1 hereof. It is specificallyagreed that the OWNER may prefer its Claim(s)against the CONTRACTOR as counter-claim(s) ifa Notified Claim of the CONTRACTOR has beenreferred to arbitration. The CONTRACTOR shallnot, however, be entitled to raise as set-off defenceEor counter-claim any claim which is not NotifiedClaim included in the CONTRACTOR’s Final Bill inaccordance with the provisions of Clause 6.6.3.0hereof.

9.0.1.1The Sole Arbitrator referred to in Clause 9.0.1.0Fhereof shall be selected by the CONTRACTOR outof panel of 3 (three) persons nominated by theOWNER for the purpose of such selection, and shouldthe CONTRACTOR fail to select an arbitrator within30 (thirty) days of the panel of names of suchGnominees being furnished by the OWNER for thepurpose, the Sole Arbitrator shall be selected by theOWNER out of the said panel.

9.0.2.0Any dispute(s) or difference(s) with respect to orconcerning or relating to any of the following mattersare hereby specifically excluded from the scope,

purview and ambit of this Arbitration Agreement withthe intention that any dispute or difference withrespect to any of the said following matters and/orrelating to the Arbitrator’s or Arbitral Tribunal’sjurisdiction with respect thereto shall not and cannotform the subject- matter of any reference orsubmission to arbitration, and the Arbitrator or theArbitral Tribunal shall have no jurisdiction to entertainthe same or to render any decision with respectthereto, and such matter shall be decided by theGeneral Manager prior to the Arbitrator proceedingwith or proceeding further with the reference. Thesaid excluded matters are:(i) With respect to orconcerning the scope or existence or otherwise ofthe Arbitration Agreement;(ii) Whether or not Claimsought to be referred to arbitration by theCONTRACTOR is Notified Claim;(iii) Whetheror not Notified Claim is included in theCONTRACTOR’s Final Bill in accordance with theprovisions of Clause 6.6.3.0 hereof.(iv) Whether ornot the CONTRACTOR has opted for the AlternativeDispute Resolution Machinery with respect to anyNotified Claim included in the CONTRACTOR’sFinal Bill.

9.0.3.0The provisions of the Indian Arbitration & ConciliationAct, 1996 and any re-enactment(s) and/ormodification(s) thereof and of the Rules framedthereunder shall apply to arbitration proceedingspursuant hereto subject to the following conditions:(a)The Arbitrator shall give his Award separately inrespect of each Claim and Counter-Claim; and(b)The Arbitrator shall not be entitled to review anydecision, opinion or determination (howsoeverexpressed) which is stated to be final and/or bindingon the CONTRACTOR in terms of the ContractDocuments.”

4.2. As per the contract entered into between the parties, thedesignated date for commencement of the project was the date ofissuance of FOA i.e. 03.03.2010, and that the scheduled date of completion

ABC

DEFG

Awas 02.10.2011. It appears that the execution of the project was delayed,as result of which the project was completed only on 28.12.2015. TheNCCL was issued completion certificate by the IOCL indicating thedate of completion of the project as 28.12.2015. In view of the delay incompletion of the project beyond the scheduled date, the NCCL made arequest for extension of time vide the communication dated 23.05.2016.BWhile the EOT requests were pending with the IOCL, the NCCLsubmitted its final bill dated 05.08.2016 to the Engineer-In-Chargeappointed under the contract between the parties. According to theNCCL, the NCCL in its final bill dated 05.08.2016 made specificreference to the Notified Claims. There were correspondences betweenCthe Engineer-In-Charge and Thyssenkrupp Industrial Solutions India (P)Ltd. (hereinafter referred to as “TKIS”) pending settlement of the finalbill and the request for Extension of Time (EOT). The NCCL respondedto the communication dated 01.11.2016 by the TKIS, vide its responsedated 02.11.2016. It appears that the NCCL conveyed to TKIS that if itsrequest for EOT were considered favorably and if price adjustment doesDnot exceed 4%, then, all its extra/additional claims including NotifiedClaims submitted by it through various communications and the final billshould be treated as withdrawn.4.3. The TKIS having received the aforesaid communication fromthe NCCL, made its recommendations vis-à-vis the request for EOTEmade by the NCCL. It appears that thereafter, TKIS in its communicationdated 13.01.2017, informed NCCL that it had approved EOT for theperiod between 03.10.2011 to 03.11.2015, however, without price discountas per Clause 4.4.0.0 of the General Conditions of Contract (hereinafterreferred to as “GCC”) and that for the period falling between 04.11.2015Fto 28.12.2015 which covered the period of 55 days, it had concluded thatthe delay was attributable to NCCL. Accordingly, TKIS conveyed toNCCL that for the later period, as per Clause 4.4.2.0 of the GCC, aprice adjustment discount of 4% would be applicable.

4.4. It is the case on behalf of NCCL that being aggrieved, itwrote to the IOCL on 23.01.2017 to reconsider its decision and accordGEOT upto the date of completion i.e. 28.12.2015 without making anyadjustment towards price as indicated in the communication dated13.01.2017.

4.5. That, thereafter, the IOCL released sum of Rs.4,53,04,021/-, the amount calculated as per the communication dated 13.01.2017,Hafter making due adjustments towards taxes etc.

4.6. It appears that subsequently and after period of 6&1/2months (after the settlement of the claim) and after receiving the finalbill payment 8 days earlier, on 08.05.2017, vide communication dated16.05.2017, NCCL reneged on the letter of 02.11.2016 and alleged thatit was made to withdraw its claim under coercion and it had withdrawnits Notified Claims as TKIS vide its communication dated 01.11.2016,had indicated that the review of the final bill and request for EOT wouldbe considered only if it gave up its insistence on its Notified Claims beingconsidered.

4.7. That IOCL sent its response vide communication dated06.06.2017, wherein it stated that none of the claims mentioned in thefinal bill were Notified Claims.

4.8. In the above backdrop, NCCL invoked the arbitration clausecontained in the Agreement on 01.07.2017. That, the IOCL, inaccordance with Clause 9.0.2.0 referred the matter regarding arbitrabilityof NCCL’s claims to the General Manager on 12.07.2017.

4.9. Vide the communication / letter dated 10.11.2017, the GeneralManager held that the claims cannot be referred to arbitration and thatthe Arbitration Agreement itself does not survive on account of NCCLwithdrawing its Notified Claims. The General Manager held thattherefore there exist no dispute to be referred to arbitration.

4.10. Thereafter the respondent – NCCL approached the DelhiHigh Court by filing Arbitration Petition No.115/2018 under Section 11(6)of the Arbitration Act for appointment of sole Arbitrator. The said petitionwas opposed by the IOCL on number of grounds. However, by overrulingall the objections raised on behalf of the appellant – IOCL, by theimpugned judgment and order, the High Court has allowed the saidarbitration petition and appointed the sole Arbitrator.

4.11. Impugned judgment and order passed by the High Courtdated 08.02.2019 in Arbitration Petition No.115/2018 is the subject matterof present Civil Appeal No.341/2022 (arising out of Special Leave PetitionNo.13161/2019).

5. With respect to other four contracts between the same partiesand with same arbitration clauses, the NCCL’s claims were sent to theGeneral Manager under Clause 9.0.2.0 of the GCC. So far as the CivilAppeal arising out of SLP No.13408/2019 is concerned, the NCCL didnot approach the General Manager but the Arbitration Petition filed beforethe High Court was forwarded by the IOCL to the General Manager for

Aits determination under Clause 9.0.2.0 of the GCC. That, in all theremaining four cases (Civil Appeal Nos.342/2022 to 345/2022), theGeneral Manager declared that none of the claims were Notified Claims.

6. Thereafter the NCCL approached the High Court by way ofArbitration Petition Nos.115/2018, 356/2018, 116/2018, 407/2018 and 406/B2018. By the impugned judgment and orders, the High Court has allowedall the respective applications under Section 11(6) of the Arbitration Actand by different impugned judgment and orders, has appointed the soleArbitrator. Impugned judgment and orders passed by the High Court isthe subject matter of Civil Appeal Nos.341/2022 to 345/2022.

7. Shri K.K. Venugopal, learned Attorney General has appearedCon behalf of the appellant – IOCL and Shri Ranjith Kumar, learned SeniorAdvocate has appeared on behalf of the respondent – NCCL.

8. Shri K.K. Venugopal, learned Attorney General appearing onbehalf of the IOCL has vehemently submitted that in the present caseboth the parties are governed by the terms of the contract entered intoDbetween the parties viz. the GCC. That in fact, both the parties aregoverned by the procedure to be followed in case of dispute betweenthe parties, more particularly contained in the GCC and the arbitrationclause.

8.1 It is further submitted by the learned Attorney General thatEparty autonomy is the backbone of arbitration and the terms of the contracthave to be interpreted in the way the parties wanted and intended themto be. In this regard reliance is placed upon the decision of this Court inthe case of Centrotrade Minerals & Metal Inc. v. HindustanCopper Ltd. reported in (2017) 2 SCC 228 (Paras 38-42).F8.2 It is submitted by the learned Attorney General that there arethree categories of contracts which could arise for consideration, whichcan be summarized as under:

(i) Where no arbitration agreement exists at all. As the arbitrationagreement itself is an independent contract and is consensual inGnature, it is left to the parties to include an arbitration agreementin the underlying contract, or not to include it. If no arbitrationagreement exists in contract, the only option if dispute arisesfor either party is to go by way of suit;

(ii) An arbitration agreement can exist in the underlying contractor outside the contract, which is absolute in terms. This is theH

standard arbitration clause, and would be in the nature of “whereany dispute arises between the parties in relation to theinterpretation or implementation of this contract, it shall be referredto arbitration under the Arbitration and Conciliation Act, 1996...”This would be an UNRESTRICTED or ABSOLUTE arbitrationclause.

In such case, in the background of Section 11(6-A), no questionof the Court declining to refer the matter to arbitration wouldarise, if it finds that the arbitration agreement exists and is valid.In such case, every dispute between the parties has to be referredto arbitration because Section 11(6-A) would mandate this;

(iii) The third category would be where the parties agree to havean arbitration clause but also consensually agree that certainspecified disputes alone will be the subject of arbitration. Thiswould mean that no arbitration clause exists in regard to all otherdisputes, and no arbitration clause would exist in regard to the‘excepted’ or ‘excluded’ disputes. In such case, Section 11(6-A) itself cannot be invoked as no arbitration clause exists in regardto these other disputes. This would be RESTRICTED arbitrationclause.

8.3 It is further submitted by the learned Attorney General thatwhen all the conditions mentioned in the GCC are satisfied and theprocedure is followed and only with respect to the restricted arbitrationclauses and with respect to the Notified Claims only the dispute betweenthe parties can be referred to the arbitration.

8.4 It is submitted that there are umpteen number of examples ofrestricted arbitration clauses. Reliance is placed on the decision of thisCourt in the case of United India Insurance Co. Ltd. v. HyundaiEngg. & Construction Co. Ltd. reported in (2018)17 SCC 607,where the arbitration clause expressly stated that where claim is madeagainst the insurer and the insurer denies its liability, no reference toarbitration can take place. In support of the above submission, relianceis placed on following decisions of this Court:

(1)Vidya Drolia v. Durga Trading Corpn.

[(2021)2 SCC 1, Paras 113-116)

(2)Garware Wall Ropes Ltd. vs. Coastal Marine

AConstructions & Engg.

[(2019) 9 SCC 209, Paras 28-29)

(3)Oriental Insurance Co. Ltd. v. Narbheram Power &Steel (P) Ltd.

8.5 It is submitted by the learned Attorney General that in theaforesaid decisions, this Court had occasion to consider the applicabilityof Section 11(6-A) and its impact.

8.6 It is submitted that in the case of Garware (supra), it is observedCand held that where the underlying contract including the arbitration clauseis not stamped, in such case, the arbitration clause exists in fact butDOES NOT EXIST IN LAW. That in other words, Section 11(6-A) willnot be Bar for the Court holding that as the arbitration clause does notcover the particular dispute, Section 11(6-A) will not apply as there is noDarbitration clause in that regard and therefore, no reference to arbitrationcan be made.

8.7 It is submitted that in the case of Vidya Drolia (supra), thisCourt had considered various aspects with respect to the restrictedarbitration clause. But in the case of unrestricted clauses, all issues raisedby the contracting parties will have to be referred to arbitration, becauseEof Section 11(6-A). However, the instant case is case of restrictedarbitration clause that specifically excludes certain issues from arbitration,as result of which, no arbitration clause exists for those ‘other’ or‘excepted’ disputes and hence, the question of referring those disputeswould not arise. That in the case of Vidya Drolia (supra), the ArbitrationFAgreement itself sets out what is excluded from arbitration. Therefore,it was held that Section 11(6-A) would not stand in the way of making areference.

8.8 It is further submitted by learned Attorney General that in thepresent case the respondent NCCL received the amount of final bill inGfull settlement of their claims. That in the present case the arbitrationclause itself states that where the final bill amount has been received bythe party, or where sum has been received on account of NotifiedClaims, the arbitration clause itself stands extinguished. Therefore, thefact that amount of final bill having been received in full settlement cannotbe the subject matter of reference by any specific stipulation in theHcontract.

8.9 Learned Attorney General has taken us to the relevant clausesof the GCC more particularly Clauses 1.21.0.0, 6.6.0.0, 6.6.1.0, 6.6.2.0,6.6.3.0, 6.6.3.1, 6.6.4.0, 6.6.5.0, 6.6.6.0, 6.7.0.0, 6.7.1.0, 6.7.2.0, 6.7.3.0,9.0.0.0, 9.0.1.0, 9.0.1.1, 9.0.2.0 and 9.0.3.0. It is contended that as perClause 9.0.1.0, the only matter to which reference to arbitration canbe sought is “Notified Claim” included in the final bill and to no otherdispute. That all disputes other than Notified Claims included in the finalbill, have to be pursued by way of suit. The expression, “NotifiedClaim” is defined in Clause 1.21.0.0 of the GCC.

8.10 It is urged that only those Notified Claims which are notifiedin accordance with provisions of Clause 6.6.1.0, can be referred toarbitration.

8.11 It is submitted that the parties are at liberty to provide withinthe contract departmental machinery for resolution of certain matters,the determination of which will be outside the scope of arbitration. Thatsuch departmental machinery, being the will of the parties as embodiedin the contract, must be respected and given effect to. In support of theabove submissions, reliance is placed on the following decisions of thisCourt:

(i)Food Corporation of India v. Sreekanth Transport(1999) 4 SCC 491 (Paras 2, 3)(ii)Harsha Constructions v. Union of India(2014) 9 SCC 246 (Paras 14, 18, 19)

(iii)Mitra Guha Builders (India) Company v. Oil and NaturalGas Corporation Ltd.(2020) 3 SCC 222 (Paras 23, 24, 26, 30)

8.12 The learned Attorney General has also relied upon thefollowing decisions of the Delhi High Court and Gauhati High Courtsdealing with identical clause in cases where the IOCL was party andin which the Delhi High Court and Gauhati High Court have expresslyinterpreted the very Clause 9.0.1.0 and 9.0.2.0.

(i)China Petroleum Pipeline Bureau v. Indian Oil CorporationLtd. [ARB.A. (COMM.) 35/2019, decision dated10.01.2020]

A(ii)Srico Projects Pvt. Ltd. v. Indian Oil Foundation [ARB.PET. 276/2016 decided on 09.01.2017 along with order dated03.07.2017]

(iii)Institute of Geoinformatics (P) Ltd. v. Indian Oil CorporationLtd. [ARB. PET. 175/2012 decided on 19.05.2015]B

(iv)IOT Infrastructure and Energy Service v. Indian OilCorporation Ltd. [ARB. PET. 334/2014 decided on12.02.2015]

(v)Bongaigaon Refinery v. M/s. Buildworth Pvt. Ltd.[Arb.Appeal 10/2006 before Gauhati High Court]C

8.13 It is submitted that the Special Leave Petitions against thedecision in the case of China Petroleum Pipeline Bureau (supra) andSrico Projects Pvt. Ltd. (supra) have been dismissed by this Court.

8.14 It is further submitted by learned Attorney General that inDthe present case the final bill payment had been made to the respondentand accepted by it pursuant to an understanding between the parties bywhich the respondent expressly waived its Notified Claims. It is submittedthat the arbitration clause itself is subject to Clauses 6.7.1.0 and 6.7.2.0.It is submitted that Clause 6.7.2.0 dealing with “Notified Claims” expresslydeclares that the acceptance of any amount by the contractor in respectEof the Notified Claims shall result in full and final satisfaction of theclaims by the contractor in respect of the Notified Claims and hence, thecontract, including the arbitration clause, shall stand discharged andextinguished. This is as per Clause 6.7.2.0 itself, notwithstanding anyqualifying remarks, protest or condition imposed or purported to beFimposed by the contractor relative to the acceptance of such payment.

8.15 It is submitted that applying these principles to the presentcase, NCCL’s express statement dated 02.11.2016 is required to beappreciated and/or considered. That pursuant to the said statement bythe NCCL, the IOCL (petitioner) levied price adjustment of only 4%as opposed to 10%; and the respondent expressly withdrew its NotifiedGClaims. It is submitted that the IOCL also paid the dues as per the finalbill. The Notified Claims, having been withdrawn, therefore, could notmore be the subject matter of any reference to arbitration. It is submittedthat as result of the acceptance by the NCCL of the amount paidpursuant to its final bill, and the Notified Claims having been withdrawn,Hand the result of Clauses 6.7.1.0 and 6.7.2.0, the contract, including the

arbitration clause stands discharged and extinguished and therefore,subsequently, no reference to arbitration could be made.

8.16 It is submitted that it is only 6½ months later, on 16.05.2017and after receiving the final bill payment 8 days earlier on 08.05.2017,that the NCCL reneged on its letter withdrawing its demand in regard toNotified Claims. It is submitted that the reason why the NCCL withdrewtheir demand for payment of the full amount of final bill including NotifiedClaims is that if 10% has been deducted due to the delay, an amount ofRs.14.8 Crores would have been deducted from the payment of NCCL.It is submitted that having received Rs.151 Crores against the contractof Rs.148 Crores, the NCCL was well aware that in such an eventuality,it would have received no amount against the final bill and its bankguarantee would also have been invoked. That in fact by withdrawingthe demand, the respondent was now able to get Rs.4.53 Crores as wellas the return of the bank guarantee of Rs.14.8 Crores.

8.17 It is further submitted that Clause 9.0.2.0 of the GCCspecifically excludes certain matters, such as disputes concerning thescope of the arbitration agreement, viz., (i) whether or not claim is aNotified Claim; (ii) whether or not Notified Claim is included in thecontractor’s bill etc.; from the scope, purview and ambit of the ArbitrationAgreement. It is submitted that under sub-Clause (iii) thereof, NotifiedClaim covered by decision of the General Manager is specifically anexcluded matter. It is submitted that in the present case the GeneralManager rejected the demand of the NCCL in regard to the NotifiedClaims, particularly as the demand in regard to ‘Notified Claims’ hadbeen specifically withdrawn by the NCCL. It is submitted therefore thatviewed from any angle, as no arbitration clause existed so far as theNCCL is concerned, the High Court has committed serious error inreferring the dispute between the parties to Arbitrator and appointingthe Arbitrator.

8.18 Now, so far as the other four cases are concerned, the learnedAttorney General has submitted that in those four cases the claims werereferred / sent to the General Manager under Clause 9.0.2.0 of theGCC. That in all the remaining cases the General Manager declaredthat none of the claims of the NCCL was Notified Claim. Therefore,the claims which are found by the General Manager not to be NotifiedClaims are not arbitrable and are outside the scope and purview of theArbitration Agreement. It is submitted that in that view of the matter, the

AHigh Court ought to have dismissed the applications / petitions filed bythe NCCL under Section 11 of the Arbitration Act.

Making above submissions and relying upon decisions, it is prayedto allow the present appeals and set aside the respective orders passedby the High Court referring the dispute between the parties to arbitrationBand appointing the sole Arbitrator.

9. Present appeals are vehemently opposed by Shri Ranjith Kumar,learned Senior Advocate appearing on behalf of the respondent – NCCL.

9.1 Shri Ranjith Kumar, learned Senior Advocate appearing forthe respondent – NCCL has made following submissions pointing outCthe relevant facts which, according to him, are relevant for deciding thedispute in present appeals.

(1)That, the parties herein had entered into an agreement,whereby the respondent NCCL was tasked with the job ofcompleting the civil, structural and associated UG Pipingworks for the Paradip Refinery;

(2)Due to certain reasons attributable to IOCL, there was adelay in completion of the works;

(3)In accordance with the GCC, NCCL on 23.05.2016, appliedfor extension of time and submitted its final bill on 05.08.2016;

(4)On 29.07.2016, NCCL issued the No Due Certificate,Ehowever, it also made it clear that the said Certificate wouldnot include final bill amount, service tax amount and theNotified Claims due from IOCL;

(5)The Engineer-in-charge vide letter dated 01.01.2016,expressly acknowledged the presence of “Notified Claims”Fin the final bill and coerced NCCL to take back its NotifiedClaims in order to process its application for EOT;

(6)Under duress, NCCL was constrained to issue letter on02.11.2016 withdrawing its Notified Claims on the twincondition that the application for EOT is consideredGfavorably and the price discount does not exceed 4% ofthe contract value;

(7)That, the letter dated 02.11.2016 was clearly conditionaland was in the nature of an offer and not an acceptance;

(8)Vide letter dated 13.01.2017, IOCL informed NCCL thatHthey had only partially allowed the application for EOT and

price discount of 4% was applied to the period for whichthe application for EOT was not allowed. Therefore, it isclear that IOCL did not positively respond to both theconditions stated by NCCL in its letter dated 02.11.2016;

(9)That, aggrieved by the aforesaid decision, NCCL withoutany delay, on 23.01.2017, communicated that the decisionto partially allow its application for EOT is unacceptable asthe same is not in accordance with the conditional offergiven by NCCL and also since the delay was caused due toreasons attributable to the IOCL;

(10)Disregarding the aforesaid letter, IOCL on 08.05.2017,unilaterally released the payment against the final bill, afteradjusting the price discount;

(11)That, NCCL on 16.05.2017 i.e. within 10 days from therelease of the amount, informed IOCL that the applicationfor price discount is misplaced and its ‘Notified Claims’ stillhold good as the conditional offer of NCCL was notaccepted;

(12)Since IOCL miserably failed to provide an appropriateresponse within reasonable period of time, NCCL invokedthe arbitration clause i.e. Clause 9.0.1.0 of the GCC andsubmitted its claims to IOCL;

(13)It is submitted that as per Clause 9.0.1.0 read with Clause9.0.2.0 of the GCC, IOCL had to refer the claims of NCCLto its General Manager and then the General Manager wasto issue declaration pursuant to which the arbitration couldcommence;

(14)It is submitted that in the claims concerned in four of thepetitions, the determination was made by the GeneralManager in an inordinately belated manner. It is submittedthat in 3 out of 5 petitions, the determination by the GeneralManager was made after NCCL filed the arbitrationpetitions before the High Court. It is submitted that in acompletely malafide and deceptive manner, IOCL claimsto have made reference to the General Manager whodetermined the nature of claims after filing of the counteraffidavit by NCCL before this Court.

A(15)It is submitted that therefore, as such, IOCL is attemptingto scuttle respondent’s contractual right to pursue arbitrationby bringing on record document nearly two years afterthe respondent invoked the arbitration clause.

(16)It is submitted that the General Manager’s decision whichis relevant in SLP Nos.13161 and 13183 of 2019 was basedBon the ground that there was full and final settlement betweenthe parties. It is submitted that as the decision of the GeneralManager on “Notified Claims” was erroneous, malafide andon technical grounds, NCCL rightly approached the HighCourt of Delhi under Section 11(6) of the Arbitration ActCseeking the relief of appointment of Arbitrator. It is submittedthat therefore the High Court is absolutely justified inappointing the Arbitrator.

9.2 Shri Ranjith Kumar, learned Senior Advocate appearing forNCCL has supported the impugned orders passed by the High Court byDmaking the following broad submissions:

(1)As per the agreement entered into between the parties, theGeneral Manager is not permitted to decide if claim isbarred by virtue of there being accord and satisfaction or aclaim being an excepted claim.

E(2)Under Section 11(6-A) of the Arbitration Act, at the stageof appointment of an arbitrator, the scope of interventionby the Courts is confined to the examination of the existenceof an arbitration agreement.

(3)At the stage of appointment of the arbitrator, the Courtcannot look into whether there has been accord andFsatisfaction between the parties

(4)At the stage of appointment of arbitrator, the Court cannotlook into whether claim is an excepted claim or not.

(5)Contractual clauses cannot be read in manner thatabridges statutory rights and the doctrine of mutuality, toGconfer the power to unilaterally determine arbitrability of adispute upon one of the parties.

(6)As per the doctrine of election, the present proceedingsought to be dismissed since IOCL has preferred anapplication under Section 16(2) and 16(5) challenging theHjurisdiction of the Arbitral Tribunal.

9.3 On an interpretation of the Clauses of the GCC, Shri RanjithKumar, learned Senior Advocate appearing for the respondent NCCLhas submitted that bare perusal of the relevant clauses of the GCCwould indicate that the General Manager of IOCL is neither entitled toexamine whether “Notified Claim” is an ‘excepted claim’ nor can helook into the issue whether there is accord and satisfaction between theparties.

9.4 It is submitted that Clause 9.0.1.0 is subject to Clauses 6.7.1.0,6.7.2.0 and 9.0.2.0. Further, Clause 9.0.2.0 creates machinery wherebyIOCL has unbridled power conferred upon its General Manager to certifyif claim is capable of being referred to arbitration. The said clause,according to IOCL vests the sole discretion of deciding the arbitrabilityof claims on the General Manager. It is submitted that, as such, theinterpretation of the Clause as suggested by IOCL, is in derogation ofnot only the arbitrator’s power to decide arbitrability, but also the Court’spower under Section 11 of the Arbitration Act.

9.5 It is submitted that the said Clause would indicate that theGeneral Manager is only supposed to see if the claim raised by therespondent is (i) Notified Claim as defined under Clause 1.21.0.0 r/W.Clause 6.6.1.0; and (ii) whether the Notified Claim is included in thefinal bill in accordance with Clause 6.6.3.0. That the General Manageris not empowered under the said Clause to state that claim is notarbitrable due to full and final settlement between the parties or due to aclaim being an excepted claim.

9.6 It is submitted that in the present case, the IOCL has admittedthat the claims raised by the respondent are ‘Notified Claims’ and thisfact has never been disputed by the IOCL or its General Manager. It issubmitted that even the second condition is also fulfilled as the respondent’sfinal bill includes its Notified Claims. It is submitted that thus the onlylogical conclusion which follows is that the Notified Claims raised by therespondent should have been referred to arbitration. However, theGeneral Manager of the IOCL, in two cases, denied referring the NotifiedClaims to arbitration on the ground that there was full and final settlementbetween the parties, and in other three cases the General Manager hasdenied referring the Notified Claims to arbitration on the ground thatthey are ‘excepted claims’.

9.7 It is submitted that as per the GCC, the General Manager isnot entitled to resist the reference of Notified Claim to arbitration on

Athe ground of accord and satisfaction. That the aspect pertaining to fulland final settlement between the parties, forms part of Clauses 6.7.1.0and 6.7.2.0 and not of Clause 9.0.2.0. That, in fact, Clause 6.7.1.0expressly provides that upon payment of sums under the final bill, thereshall be full and final settlement, without prejudice to the Notified Claimsof the contractor included in the final bill. It is submitted that therefore,Beven after the payment of money on 08.05.2017, Notified Claims areneither settled nor is there full and final settlement in respect of NotifiedClaims. It is submitted that insofar as ‘excepted claims’ are concerned,as per Clause 9.0.2.0, once the General Manager comes to decisionthat claim is Notified Claim and the same is included in the final bill,Che is duty bound to refer the claim to arbitration. It is submitted thattherefore the reasoning behind the decision rendered by the GeneralManager that the claims are not Notified Claims is not only unsustainable,but is also ex facie contrary to Clause 9.0.2.0. It is submitted that Clause9.0.2.0 does not render the decision of the General Manager final.D9.8 It is further submitted that vide the Amendment Act, 2015,section 11(6-A) has been inserted by virtue of which, the scope ofintervention at Section 11 stage is very narrow. Reliance is placed uponthe decision of this Court in the case of Duro Felguera S.A. v.Gangavaram Port Limited [(2017) 9 SCC 729]. It is submitted thatafter insertion of Section 11(6-A), the scope of intervention by the CourtEat the stage of appointment of Arbitrator is narrowed down and theCourts may have to now only examine the existence of valid arbitrationagreement. That in the aforesaid decision it is held that the legislativepurpose is essentially to minimize the Court’s intervention at the stage ofappointment of Arbitrator and that the intention as incorporated in SectionF11(6-A) ought to be respected is the submission.

9.9 It is submitted that despite the above binding decision, in thesubsequent decision in the case of United India Insurance Co. Ltd.v. Antique Art Exports (P) Ltd. [(2019) 5 SCC 362], coordinateBench of this Court took the view that once claim is settled, it leavesGno arbitral dispute subsisting under the agreement to be referred to theArbitrator.

9.10 It is submitted that the conflicting decisions were consideredand the issue has now been settled by Three Judges Bench of thisCourt in subsequent decision rendered in the case of Mayavati TradingHPrivate Limited v. Pradyuat Deb Burman [(2019) 8 SCC 714].

That after considering in detail the 246[th] Law Commission Report; thereport of the High-Level Committee regarding institutionalization ofarbitration in India and the Statement of Objects and Reasons of the2015 Amendment Bill, it is held that post-2015, the scope of the Courts’powers at the stage of appointment of Arbitrator is confined to theexamination of the existence of the arbitration agreement. It is submittedthat the decision of this Court in the case of Mayavati Trading PrivateLimited (supra) has been subsequently followed by this Court in recentdecision in the case of Vidya Drolia (supra).

9.11 Shri Ranjith Kumar, learned Senior Advocate appearing onbehalf of the respondent has also relied upon the following decisions ofthis Court in support of his submissions of applicability of Section 11(6-A) and very limited jurisdiction of the Courts while considering anapplication of Section 11(6-A) of the Arbitration Act post-2015.

(1)Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. NorthernCoal Field Ltd.(2020)2 SCC 455

(2)BSNL & Anr. v. Nortel Networks India Pvt. Ltd.(2021)5 SCC 738

(3)Pravin Electricals (P) Ltd. v. Galaxy Infra & Engg. (P)ELtd.

(2021)5 SCC 671

(4)Sanjiv Prakash v. Seema Kukreja(2021)9 SCC 732

9.12 It is further submitted that although 2019 Amendment to theArbitration Act has deleted Section 11(6-A), this Court in the case ofVidya Drolia (supra) has clarified that the rationale behind the insertionof Section 11(6-A) of the Arbitration Act would continue to apply andguide the Courts on its scope of jurisdiction at stage one, that is, the pre-arbitration stage.

9.13 It is further submitted by learned Senior Advocate appearingfor the respondent NCCL that as held by this Court in the case of VidyaDrolia (supra) as well as in the case of Swiss Timing Limited v.Commonwealth Games 2010 Organizing Committee [(2014) 6SCC 677], the role of Court is to assist and support arbitration and

Aleave substantive part of the adjudication to the arbitral Tribunal. It issubmitted therefore that at the stage of an application filed under Section11, the Court is only supposed to look as to, whether, valid arbitrationagreement exists. It is submitted that therefore the scope of interventionby the Court is restricted at the stage of appointment of Arbitrator and itcan neither examine whether certain claims are ‘excepted’ nor can itBlook into the issue of whether there is “accord and satisfaction”.

9.14 It is further submitted by learned Senior Advocate appearingfor the respondent NCCL that in cases where the claims are rejected bythe General Manager on the ground that there was “accord andsatisfaction” between the parties and hence, not referable to arbitration,Cin the instant case the respondent has disputed petitioner’s contention on“accord and satisfaction” even before the payment of final bill. It issubmitted that therefore the issue whether “accord and satisfaction”existed between the parties is virtual in nature and examination of thesame would require detailed perusal of the evidence by the Arbitral

DTribunal. That in any event, pursuant to the introduction of Section 11(6-A), the Court has to restrict itself to the issue of existence of theArbitration Agreement at Section 11 stage and cannot delve into theissue of “accord and satisfaction” is the submission.

9.15 Relying upon the decisions of this Court in the case of AmbicaEConstruction v. Union of India reported in (2006) 13 SCC 475 andR.L. Kalathia & Co. v. State of Gujarat reported in (2011) 2 SCC400, it is submitted that as observed by this Court in the aforesaid twodecisions, in many instances, contractors are coerced to issue no-duescertificate, without which no amount would be released. It is submittedthat in the aforesaid decision it is observed that merely because theFcontractor has issued “No Dues Certificate”, if there is an acceptableclaim, the Court cannot reject the same on the ground of issuance of“No Dues Certificate”.

9.16 It is further submitted that the question whether NotifiedClaim is an ‘excepted claim’, is within the exclusive domain of theGArbitrator to be answered. Reliance is placed on the decision of thisCourt in the case of BSNL v. Motorola India (P) Ltd. reported in(2009) 2 SCC 337 and National Insurance Co. Ltd. v. BogharaPolyfab Pvt. Ltd. reported in (2009) 1 SCC 267 (even prior to 2015Amendment to the Arbitration Act) as well as in the case of ZostelH

Hospitality (P) Ltd. vs. Oravel Stays (P) Ltd. reported in (2021) 9SCC 765.

9.17 It is further submitted that Section 11 of the Arbitration Actexpressly confers powers upon the Courts to determine the existence ofan Arbitration Agreement and subsequently appoint an Arbitrator. It issubmitted that Section 8 confers upon the Courts and judicial authoritiesthe power to refer the parties to arbitration when there is an arbitrationAgreement. Similarly, section 16 of the Arbitration Act categoricallyrecognizes and empowers the Arbitral Tribunal to rule on any objectionraised as against its jurisdiction. It is submitted that therefore petitioner’sinterpretation of Clause 9.0.2.0 of the GCC qua the purported finality ofthe determination of its General Manager, seeks to usurp the statutorypowers of the Courts as enshrined under Sections 8 and 11 and thestatutory power of an arbitral Tribunal as enshrined under Section 16.

9.18 It is further submitted that insofar as the claims concerned inother four petitions (except the lead matter), the determination was madeafter an inordinate delay. That in 3 out of 5 petitions, the determinationby the General Manager was made after the respondent filed theArbitration Petitions before the High Court. That in SLP No.13408/2019,even no reference to the General Manager was made until the filing ofthe Arbitration Petition before the High Court. That therefore the GeneralManager’s decision in the aforesaid four SLPs is inefficacious as thedetermination has been made not only thirty days after the submission ofthe claim, but also after the arbitration petitions were filed before theHigh Court. Reliance is placed upon the decisions of this Court in thecase of Datar Switchgears Ltd. v. Tata Finance Ltd. reported in(2000) 8 SCC 151 (Paras 18 and 19).

9.19 It is further submitted by Shri Ranjith Kumar, learned SeniorAdvocate appearing for respondent - NCCL that in the present case,the petitioner had filed an application challenging the jurisdiction of theArbitral Tribunal under Sections 16(2) and 16(5) of the Arbitration Actbefore the Arbitral Tribunal on 10.06.2019, which is, after filing of thepresent petition and before the issuance of notice by this Court on03.07.2019. That the petitioner has not disclosed the same and hassuppressed this factum of pursuing two remedies simultaneously. It issubmitted that therefore as the petitioner has elected to pursue theproceeding before the Arbitral Tribunal and as per the doctrine of election

Aof remedies, the petitioner ought not to be permitted to continue thepresent proceedings before this Court.

Making above submissions, it is prayed to dismiss the presentappeals.

10. We have heard learned Senior Advocates appearing for theBrespective parties at length.

10.1 By the impugned orders the High Court in exercise of powersunder Section 11(6) of the Arbitration Act has appointed the Arbitratorsto adjudicate and resolve the disputes between the parties arising out ofthe respective contracts. The respective orders passed by the High CourtCappointing the Arbitrator in applications under Section 11(6) of theArbitration Act are the subject matter of present appeals.

10.2 It cannot be disputed that both the parties are governed bythe GCC. The GCC are the part of the Agreements / Contracts betweenthe parties. Under the GCC, the parties have agreed to resolve the disputeDbetween them only in terms of the relevant clauses of the GCC referredto hereinabove. The parties have agreed that certain specified disputesalone will be the subject of arbitration.

10.3 In the case of Narbheram Power & Steel (P) Ltd. (supra),it is observed and held that the parties are bound by the ClausesEenumerated in the policy and the Court does not transplant any equity tothe same by re-writing clause. It is further observed and held that anarbitration clause is required to be strictly construed. Any expression inthe clause must unequivocally express the intent of arbitration. It canalso lay the postulate in which situations the arbitration clause cannot beFgiven effect to. It is further observed that if clause stipulates thatunder certain circumstances there can be no arbitration and they aredemonstrably clear then the controversy pertaining to appointment ofArbitrator has to be put to rest (Paras 10-23).

10.4 In the case of Centrotrade Minerals & Metal Inc. (supra),this Court had an occasion to consider the concept of party autonomyGand it is observed and held that party autonomy is virtually the backboneof arbitration. It is further observed and held that party autonomy beingthe brooding and guiding spirit in arbitration, the parties are free to agreeon the application of three different laws governing their entire contract– (1) proper law of contract; (2) proper law of arbitration agreementHand (3) proper law of the conduct of arbitration. It is further observed in

the said decision that the parties to an arbitration agreement have theautonomy to decide not only on the procedural law to be followed butalso the substantive law. The choice of jurisdiction is also left to thecontracting parties.

10.5 In the case of DLF Universal Ltd. & Anr. v. Director,Town and Country Planning Department, Haryana & Ors. [(2010)14 SCC 1], it is observed and held that the contract is to be interpretedaccording to its purpose. The purpose of contract is the interest,objective, values, policy that the contract is designed to actualize. Itcomprises the joint intent of the parties. It is observed that it is not anintent of single party; it is the joint intent of both the parties and thejoint intent of the parties is to be discovered from the entirety of thecontract and the circumstances surrounding its formation (Para 13).

10.6 In the case of Rajasthan State Industrial Developmentand Investment Corporation & Anr. v. Diamond and GemDevelopment Corporation Ltd. & Anr. [(2013) 5 SCC 470], it isobserved and held that party cannot claim anything more than what iscovered by the terms of the contract, for the reason that the contract isa transaction between two parties and has been entered into with openeyes and by understanding the nature of contract. It is further observedthat thus the contract being creature of an agreement between two ormore parties has to be interpreted giving literal meanings unless there issome ambiguity therein. The contract is to be interpreted giving the actualmeaning to the words contained in the contract and it is not permissiblefor the Court to make new contract, however reasonable, if the partieshave not made it themselves. It is further observed that the terms of thecontract have to be construed strictly without altering the nature of acontract as it may affect the interest of either of the parties adversely(Para 23).10.7 In the case of Mitra Guha Builders (India) Company (supra),while interpreting the clause by which the parties agreed that the decisionof the Superintending Engineer in levying compensation is final and thesame is an ‘excepted matter’ and the determination shall be only by theSuperintending Engineer and the correctness of his decision cannot becalled in question in the arbitration proceedings and the remedy, if any,will arise in the ordinary course of law, the Three Judges Bench of thisCourt after referring to and considering the earlier decisions on the pointobserved and held that once the parties have decided that certain matters

Aare to be decided by the Superintending Engineer and his decision wouldbe final, the same cannot be the subject matter of arbitration.

10.8 In the case of Harsha Construction (supra), while interpretingthe clause in the agreement by which some of the disputes werespecifically not arbitrable and in relation to the said disputes the contractorBhad to negotiate with the Engineer concerned and if the contractor wasnot satisfied with the rate determined by the Engineer, the contractorwas required to follow the procedure mentioned in the said clause and inthis regard, in paras 18 and 19, it is observed and held as under:

“18. Arbitration arises from contract and unless there is aCspecific written contract, contract with regard to arbitrationcannot be presumed. Section 7(3) of the Act clearly specifiesthat the contract with regard to arbitration must be in writing.Thus, so far as the disputes which have been referred to inClause 39 of the contract are concerned, it was not open tothe Arbitrator to arbitrate upon the said disputes as thereDwas specific clause whereby the said disputes had been“excepted”. Moreover, when the law specifically makes aprovision with regard to formation of contract in particularmanner, there cannot be any presumption with regard to acontract if the contract is not entered into by the modeEprescribed under the Act.

19. If non-arbitrable dispute is referred to an Arbitratorand even if an issue is framed by the Arbitrator in relation tosuch dispute, in our opinion, there cannot be presumptionor conclusion to the effect that the parties had agreed toFrefer the issue to the Arbitrator. In the instant case, therespondent authorities had raised an objection relating tothe arbitrability of the aforestated issue before the Arbitratorand yet the Arbitrator had rendered his decision on the said“excepted” dispute. In our opinion, the Arbitrator could nothave decided the said “excepted” dispute. We, therefore, holdGthat it was not open to the Arbitrator to decide the issueswhich were not arbitrable and the award, so far as it relatesto disputes regarding non-arbitrable disputes is concerned,is bad in law and is hereby quashed.”

10.9 At this stage, recent decision of this Court in the case ofHVidya Drolia (supra), which, as such, is post-insertion of Section 11(6-

A) of the Arbitration Act, is required to be referred to. In the said decisionit is observed and held that the issue of non-arbitrability of dispute isbasic for arbitration as it relates to the very jurisdiction of the ArbitralTribunal. An Arbitral Tribunal may lack jurisdiction for several reasonsand non-arbitrability has multiple meanings. After referring to anotherdecision of this Court in the case of Booz Allen & Hamiltan Inc. v.SBI Home Finance Ltd. [(2011) 5 SCC 532 (Para 34)], it is observedand held that there are facets of non-arbitrability, namely

“(i) Whether the disputes are capable of adjudication andsettlement by arbitration? That is, whether the disputes, havingregard to their nature, could be resolved by private forumchosen by the parties (the Arbitral Tribunal) or whether theywould exclusively fall within the domain of public fora (courts).

(ii) Whether the disputes are covered by the arbitrationagreement? That is, whether the disputes are enumerated ordescribed in the arbitration agreement as matters to be decidedby arbitration or whether the disputes fall under the “exceptedmatters” excluded from the purview of the arbitrationagreement.

(iii) Whether the parties have referred the disputes toarbitration? That is, whether the disputes fall under the scopeof the submission to the Arbitral Tribunal, or whether they donot arise out of the statement of claim and the counterclaimfiled before the Arbitral Tribunal. dispute, even if it is capableof being decided by arbitration and falling within the scope ofan arbitration agreement, will not be “arbitrable” if it is notenumerated in the joint list of disputes referred to arbitration,or in the absence of such joint list of disputes, does not formpart of the disputes raised in the pleadings before the ArbitralTribunal.”

After referring to and considering in detail the earlier decisions onthe point, more particularly, with respect to non-arbitrability and the‘excepted matters’, it is ultimately concluded in para 76 as under:

“76. In view of the above discussion, we would like topropound four-fold test for determining when the subjectmatter of dispute in an arbitration agreement is not arbitrable:

76.1. (1) When cause of action and subject-matter ofthe dispute relates to actions in rem, that do not pertain tosubordinate rights in personam that arise from rights in rem.

76.2. (2) When cause of action and subject-matter ofthe dispute affects third-party rights; have erga omnes effect;require centralized adjudication, and mutual adjudication wouldnot be appropriate and enforceable;

76.3. (3) When cause of action and subject-matter ofthe dispute relates to inalienable sovereign and public interestfunctions of the State and hence mutual adjudication would beunenforceable;

76.4 (4) When the subject-matter of the dispute isexpressly or by necessary implication non-arbitrable as permandatory statute(s).

76.5 These tests are not watertight compartments; theydovetail and overlap, albeit when applied holistically andpragmatically will help and assist in determining and ascertainingwith great degree of certainty when as per law in India, adispute or subject matter is non-arbitrable. Only when theanswer is affirmative that the subject matter of the disputewould be non-arbitrable.

76.6 However, the aforesaid principles have to be appliedwith care and caution as observed in Olympus Superstructures(P) Ltd.: (SCC p. 669, para 35)

“35. ...Reference is made there to certain disputes likecriminal offences of public nature, disputes arising out ofillegal agreements and disputes relating to status, such asdivorce, which cannot be referred to arbitration. It has,however, been held that if in respect of facts relating to acriminal matter, say, physical injury, if there is right todamages for personal injury, then such dispute can bereferred to arbitration (Keir v. Leeman). Similarly, it hasbeen held that husband and wife may refer to arbitrationthe terms on which they shall separate, because they canmake valid agreement between themselves on that matter(Soilleux v. Herbst, Wilson v. Wilson and Cahill v.Cahill).”10.10 On the question, who decides on non-arbitrability of thedispute, after referring to and considering the earlier decisions on thepoint, more particularly, the decisions in the case of Garware Wall RopesLtd. (supra); Hyundai Engg. & Construction Co. Ltd. (supra) andNarbheram Power & Steel (P) Ltd. (supra), it is observed and held thatthe question of non-arbitrability relating to the inquiry, whether the disputewas governed by the arbitration clause, can be examined by the Courtsat the reference stage itself and may not be left unanswered, to beexamined and decided by the Arbitral Tribunal. Thereafter, in para 153,it is observed and held that the expression, “existence of arbitrationagreement” in Section 11 of the Arbitration Act, would include aspect ofvalidity of an arbitration agreement, albeit the Court at the referencestage would apply the prima facie test. It is further observed that incases of debatable and disputable facts and, good reasonably arguablecase etc., the Court would force the parties to abide by the arbitrationAgreement as the Arbitral Tribunal has the primary jurisdiction andauthority to decide the disputes including the question of jurisdiction andnon-arbitrability. Ultimately in para 154, the proposition of law iscrystallized as under:

“154. Discussion under the heading ‘Who decidesArbitrability?’ can be crystallized as under:

154.1.Ratio of the decision in Patel Engineering Ltd.on the scope of judicial review by the court while deciding anapplication under Sections 8 or 11 of the Arbitration Act, postthe amendments by Act 3 of 2016 (with retrospective effectfrom 23-10-2015) and even post the amendments vide Act 33of 2019 (with effect from 9-8-2019), is no longer applicable.

154.2. Scope of judicial review and jurisdiction of thecourt under Section 8 and 11 of the Arbitration Act is identicalbut extremely limited and restricted.

154.3. The general rule and principle, in view of thelegislative mandate clear from Act 3 of 2016 and Act 33 of2019, and the principle of severability and competence-competence, is that the arbitral tribunal is the preferred firstauthority to determine and decide all questions of non-arbitrability. The court has been conferred power of “secondlook” on aspects of non-arbitrability post the award in terms of

Asub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i)of Section 34(2)(b) of the Arbitration Act.

154.3. Rarely as demurrer the court may interfere atthe Section 8 or 11 stage when it is manifestly and ex faciecertain that the arbitration agreement is non- existent, invalidor the disputes are non-arbitrable, though the nature and facetof non-arbitrability would, to some extent, determine the leveland nature of judicial scrutiny. The restricted and limited reviewis to check and protect parties from being forced to arbitratewhen the matter is demonstrably “non-arbitrable” and to cutoff the deadwood. The court by default would refer the matterwhen contentions relating to non-arbitrability are plainlyarguable; when consideration in summary proceedings wouldbe insufficient and inconclusive; when facts are contested; whenthe party opposing arbitration adopts delaying tactics or impairsconduct of arbitration proceedings. This is not the stage forthe court to enter into mini trial or elaborate review so as tousurp the jurisdiction of the arbitral tribunal but to affirm anduphold integrity and efficacy of arbitration as an alternativedispute resolution mechanism.”

10.11 In the recent decision of this Court in the case of DLFEHome Developers Limited v. Rajapura Homes Private Limitedand Another [2021 SCC Online SC 781] in which this Court alsohad an occasion to consider Section 11(6-A) of the Arbitration Act andultimately has observed, after referring to and considering the decisionof three Judges Bench of this Court in the case of Vidya Drolia (supra)that the jurisdiction of the Court under Section 11 of the Arbitration ActFis primarily to find out whether there existed written agreement betweenthe parties for resolution of the dispute and whether the aggrieved partyhas made out prima facie arguable case, it is further observed thatlimited jurisdiction, however, does not denude the Court of its judicialfunction to look beyond the bare existence of an arbitration clause to cutGthe deadwood. In the said decision, this Court had taken note of theobservations made in the case of Vidya Drolia (supra) that with viewto prevent wastage of public and private resources, the Court may conduct‘prima facie review’ at the stage of reference to weed out any frivolousor vexatious claims.

10.12 In the case of Nortel Networks India Pvt. Ltd. (supra), thisCourt had an occasion to consider the decision in the case of VidyaDrolia (supra) and in paras 46, 47 and 53.2, it is observed and held asunder:

“46. The upshot of the judgment in Vidya Drolia [Vidya Drolia v.Durga Corpn., (2021) 2 SCC 1: (2021) 1 SCC (Civ) 549] isaffirmation of the position of law expounded in Duro Felguera[Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC729 : (2017) 4 SCC (Civ) 764] and Mayavati Trading[Mayavati Trading (P) Ltd. v. Pradyuat Deb Burman, (2019)8 SCC 714 : (2019) 4 SCC (Civ) 441], which continue to holdthe field. It must be understood clearly that Vidya Drolia [VidyaDrolia v. Durga Corpn., (2021) 2 SCC 1: (2021) 1 SCC (Civ) 549]has not re-surrected the pre-amendment position on the scope ofpower as held in SBP & Co. v. Patel Engg. Ltd. [SBP & Co. v.Patel Engg. Ltd., (2005) 8 SCC 618].

47. It is only in the very limited category of cases, where there isnot even vestige of doubt that the claim is ex facie time-barred,or that the dispute is non-arbitrable, that the court may decline tomake the reference. However, if there is even the slightest doubt,the rule is to refer the disputes to arbitration, otherwise it wouldencroach upon what is essentially matter to be determined bythe tribunal.

53.2. In rare and exceptional cases, where the claims are ex facietime-barred, and it is manifest that there is no subsisting dispute,the Court may refuse to make the reference.”

11. Applying the law laid down by this Court in the aforesaiddecisions, let us consider the relevant clauses of the GCC governing theparties and the procedure to be followed in case of disputes between theparties to the contract on non-payment of alleged dues may be on accountof extra payment or compensation in respect of the works over andabove the amounts due in terms of the contract and/or the dispute on thevalidity of any deductions made or threatened by the owner.

11.1 Clause 1.21.0.0 defines “Notified Claims”. It means claimof the contractor notified in accordance with the provisions of Clause6.6.1.0. As per Clause 6.6.1.0, the contractor shall have to give notice inwriting of his claim with respect to any extra payment or compensation

Ain respect of the works over and above the amounts due in terms of thecontract or on the validity of any deductions made or threatened by theowner from any running account bills, by giving notice in writing of hisclaim in this behalf to the Engineer-in-Charge and the Site Engineerwithin ten days from the date of issue of the orders or instructions relativeto any works for which the contractor claims such additional payment…Betc. Such notice shall give full particulars of the nature of such claim,grounds on which it is based and the amount claimed. It also furtherprovides that the owner shall not in any way be liable to in respect of anyclaim by the contractor unless notice of such claim shall have been givenby the contractor to the Engineer-in-Charge and the Site Engineer. ItCalso further provides that contractor shall be deemed to have waivedany and all claims and all his rights in respect of any claim not notified tothe Engineer-in-Charge and the Site Engineer in writing in the mannerand within the time (ten days from the date of issue of the orders orinstructions). It further provides that all such claims otherwise valid within

the provisions of Clause 6.6.1.0 read with Clauses 6.6.3.0 and 6.6.3.1Dshall have to be dealt with/considered by the owner at the time ofsubmission of the Final Bill and that any action on the part of the owner(Engineer-in-Charge or Site Engineer) to reject any claim made ornotified by the contractor or delay in dealing therewith shall be deemedto be an admission by the owner of the validity of such claim or waiverEby the owner of any of its rights in respect thereof.

11.2 As per Clause 6.6.3.0, any claims of the contractor notifiedin accordance with the provision of Clause 6.6.1.0 and remain due at thetime of preparation of Final Bill by the contractor, shall have to beseparately included in the Final Bill prepared by the contractor in theFform of Statement of Claims attached thereto, giving particulars of thenature of the claim, grounds on which it is based, and the amount claimedand shall be supported by copy of the notice sent in respect thereof bythe contractor to the Engineer-in-Charge and the Site Engineer underClause 6.6.1.0. It further provides that any variance with the claim notifiedby the contractor within the provision of Clause 6.6.1.0 shall be deemedGto be claim different from the Notified Claim with consequence inrespect thereof indicated in Clauses 6.6.1.0 and 6.6.3.1.

11.3 Clause 6.6.3.1 further provides that the owner (IOCL) shallnot in any way be liable in respect of any Notified Claim not specificallyreflected in the Final Bill in accordance with the provisions of ClauseH

6.6.3.0. It further provides that in and all Notified Claims not specificallyreflected and included in the Final Bill in accordance with the provisionsof Clause 6.6.3.0 shall be deemed to have been waived by the contractorand the owner (IOCL) shall have no liability in respect thereof and thecontractor shall not be entitled to raise or include in the Final Bill anyclaims other than Notified Claim conforming in all respects and inaccordance with the provisions of Clause 6.6.3.0.

11.4 Clause 6.6.4.0 provides that no claim shall on any account bemade by the contractor after the Final Bill. It further provides that anysuch claim shall be deemed to have been waived and with respect to allsuch claims not included in the Final Bill, the owner (IOCL) is absolvedand discharged, even if not including the same, the contractor shall haveacted under the mistake of law or fact.

Thus, on fair reading of the aforesaid provisions, it can be seenthat only those claims which are Notified after following the procedureas referred to hereinabove shall be considered as “Notified Claim” andin respect of any claim other than the Notified Claim, the owner is notliable to pay and as such is absolved and discharged under the saidclauses.

11.5 The next important clause is 6.7.0.0 with respect to thedischarge of owner’s liability. As per Clause 6.7.1.0, the acceptance bythe contractor of any amount paid by the owner to the contractor inrespect of the final dues of the contractor under the Final Bill uponcondition that the said payment is being made in full and final settlementof all said dues to the contractor shall, without prejudice to the NotifiedClaims of the contractor included in the Final Bill in accordance with theprovisions of Clause 6.6.3.0, be deemed to be in full and final satisfactionof all such dues to the contractor notwithstanding any qualifying remarks,protest or condition imposed or purported to be imposed by the contractorrelative to the acceptance of such payment.

11.6 Clause 6.7.2.0 provides that the acceptance by the contractorof any amount paid by the owner (IOCL) to the contractor in respect ofthe Notified Claims of the contractor included in the Final Bill inaccordance with the provisions of Clause 6.6.3.0 and associated provisionsthereunder, upon the condition that such payment is being made in fulland final settlement of all the claims of the contractor shall, subject tothe provisions of Clause 6.7.3.0, be deemed to be in full and final

Asatisfaction of all claims of the contractor notwithstanding any qualifyingremarks, protest or condition imposed or purported to be imposed by thecontractor relative to the acceptance of such payment with the intentthat upon acceptance by the contractor of any payment made, the Contract(including the arbitration clause) shall stand discharged and extinguishedinsofar as relates to and/or concerns the claims of the contractor.B

11.7 The next important clause to be considered would be Clause9.0.0.0. The said clause is for Alternative Dispute Resolution Machinery.As per Clause 9.0.1.0, subject to the earlier Clauses, namely Clauses6.7.1.0, 6.7.2.0 and 9.0.2.0, any dispute arising out of NOTIFIEDCLAIMof the contractor included in theFinal Bill of the contractor inCaccordance with the provisions of Clause 6.6.3.0 and if the contractorhas not opted for the Alternative Dispute Resolution Machinery referredto in Clause 9.1.1.0 and any dispute arising out of any Claim of theowner against the contractor shall be referred to the arbitration of SoleArbitrator. It also further provides that the owner may prefer its ClaimsDagainst the contractor as counter-claims if Notified Claim of thecontractor has been referred to arbitration. It also further provides thatthe contractor shall not, however, be entitled to raise as set-off, defenceor counter-claim any claim which is not aNOTIFIED CLAIM includedin the contractor’sFinal Bill in accordance with the provisions of Clause6.6.3.0.E11.8 Clause 9.0.2.0 is an exclusion clause by which, certain mattersare specifically excluded from the scope, purview and ambit of theArbitration Agreement. It provides that disputes or differences withrespect to or concerning or relating to any of the matters mentioned/specified in Clause 9.0.2.0 are excluded from the scope, purview andFambit of the arbitration agreement. It further provides that any suchmatter which is specifically excluded viz. (i) with respect to or concerningthe scope or existence or otherwise of the Arbitration Agreement; (ii)whether or not Claim sought to be referred to arbitration by thecontractor is Notified Claim; (iii) whether or not Notified Claim isGincluded in the contractor’s Final Bill in accordance with the provisionsof Clause 6.6.3.0 and (iv) whether or not the contractor has opted forthe Alternative Dispute Resolution Machinery with respect to any NotifiedClaim included in the contractor’s Final Bill shall have to be decided bythe General Manager prior to the arbitration proceeding with or proceedingfurther with the reference and the Arbitrator or the Arbitral TribunalH

shall have no jurisdiction to entertain the same or to render any decisionwith respect to such matters.

Thus, on fair reading of clause 9.0.0.0, only the dispute arisingout of aNOTIFIED CLAIMof the contractor included in theFINALBILLin accordance with the provisions of Clause 6.6.3.0 shall be referredto arbitration, that too, subject to Clause 9.0.2.0 and any dispute / matterfalling within Clause 9.0.2.0 shall have to be first decided by the GeneralManager, including, whether or not Claim sought to be referred toarbitration by the contractor is Notified Claim. Therefore, if the claimis not Notified Claim, as per Clause 6.6.1.0 and the same is not includedin the Final Bill, such claim is outside the purview of the arbitrationagreement. Whether or not claim sought for arbitration by the contractoris Notified Claim or any such matter / dispute is specifically excludedfrom the scope, purview and ambit of arbitration agreement, such matter/ dispute shall have to be first decided by the General Manager prior tothe arbitral proceeding with or proceeding further with the reference.Thus, unless there is decision by the General Manager on whether ornot claim sought to be referred to arbitration by the contractor is aNotified Claim or not, the Arbitrator or Arbitral Tribunal shall have nojurisdiction to entertain such dispute.

The aforesaid clauses of the GCC are part of the contract betweenthe parties herein and both the parties are bound by the aforesaid claims.

12. It is the case on behalf of the petitioner IOCL that the IOCLhad settled the claim of respondent – NCCL accepting NCCL’s offer togrant extension of time; not to give price adjustment of over 4% of thetotal contract value and consequently IOCL condoned the delay of 1493days and granted extension of time without applying any price discount.Further for the delay of 65 days, IOCL applied the price discount ofRs.6,44,40,021 i.e. 4% of the total value of contract and thereafter IOCLreleased the payment of Rs.4,53,04,021/- against NCCL’s final bill(adjusting price discount of Rs.6.4 Crores as against Rs.14.8 Crores)and also returned NCCL’s Bank Guarantee which came to be fullyaccepted by the respondent NCCL. It is the case of IOCL that thereafter,it was not open for the respondent to raise any further claim. Therefore,it is the case on behalf of the petitioner that, there being ‘accord andsatisfaction’ for the claim, being an ‘excepted claim’, it was not open forthe respondent to invoke the arbitration agreement and request forappointment of an Arbitrator. It is also the case on behalf of the petitioner

AIOCL that in view of the specific decisions by the General Manager, on“Notified Claims”, in view of Clause 9.0.2.0, for the same claims whichare not held to be ‘Notified Claims’ by the General Manager, the mattercannot be referred to the Arbitrator in view of the clause pertaining toexcluded matters.

BOn the other hand, it is the case on behalf of the respondent thatacceptance of the amount of Rs.4,53,04,021/- was under duress andcoercion. It is also the case on behalf of the respondent that earlier offerdated 02.11.2016 was conditional one and was in the nature of anoffer and subsequently when the offer was partially allowed, therespondent without any delay communicated that the decision to partiallyCallow its application for EOT is unacceptable as the same is not inaccordance with the conditional offer given by the respondent.

12.1 Now, so far as the General Manager’s decision on NotifiedClaims is concerned, it is the case on behalf of the respondent that eventhe decision of the General Manager on the Notified Claims will alwaysDbe subject to the decision of the Arbitral Tribunal. By the impugnedjudgment and order the High Court concluded and summed up as under:

“81. Having regard to the foregoing discussion hereinabovemy conclusions can be summed as follows:

I) Where there is contestation or the decision renderedby the General Manager leaves scope for argument as towhether the claims lodged by Contractor can be categorizedas Notified Claims is best left to the Arbitral Tribunal. In otherwords, except for the situation where there is no doubt that theclaims were not lodged with the Engineer and the Site Engineeras required under Clause 6.6.1.0 68 read with 6.6.3.0 69, thematter would have to be left for resolution by Arbitral Tribunal.

II) Aspects with regard to accord and satisfaction ofthe claims or where there is dispute will also have to be leftto the Arbitral Tribunal. The position in law in this regard remainsthe same both pre and post amendment brought about in the1996 Act after 23.10.2015.

III) After the insertion of Subsection (6A) in 11 of the1996 Act the scope of inquiry by the Court in Section 11petition, (once it is satisfied that it has jurisdiction in the matter)is confined to ascertaining as to whether or not binding

arbitration agreement exists qua the parties before it which isrelatable to the disputes at hand.

IV) The space for correlating the dispute at hand withthe arbitration agreement is very narrow. Thus, except for anopen and shut case which throws up circumstance indicativeof the fact that particular dispute does it not fall within thefour corners of the arbitration agreement obtaining betweenthe parties the matter would have to be resolved by an ArbitralTribunal. In other words, if there is contestation on this score,the Court will allow the Arbitral Tribunal to reach conclusionone way or another. This approach would be in keeping withthe doctrine of Kompetenz Kompetenz; doctrine which hasstatutory recognition under Section 16 of the 1996 Act.”13. Having heard learned Counsel appearing for the respectiveparties and in the facts and circumstances of the case, the issue / aspectwith regard to ‘accord and satisfaction’ of claims is seriously disputedand is debatable. Whether, in view of the acceptance of Rs.4,53,04,021/- by the respondent NCCL which was released by IOCL on the offer /letter made by the respondent NCCL dated 02.11.2016 there is an instanceof ‘accord and satisfaction’ of the claims is good and reasonablyarguable case. It cannot be said to be an open and shut case. Therefore,even when it is observed and held that such an aspect with regard to‘accord and satisfaction’ of the claims may/can be considered by theCourt at the stage of deciding Section 11 application, it is always advisableand appropriate that in cases of debatable and disputable facts, goodreasonably arguable case, the same should be left to the Arbitral Tribunal.Similar view is expressed by this Court in the case of Vidya Drolia (supra).Therefore, in the facts and circumstances of the case, though it isspecifically observed and held that aspects with regard to ‘accord andsatisfaction’ of the claims can be considered by the Court at the stage ofdeciding Section 11(6) application, in the facts and circumstances of thecase, the High Court has not committed any error in observing that aspectswith regard to ‘accord and satisfaction’ of the claims or where there isa serious dispute will have to be left to the Arbitral Tribunal. However, atthe same time, we do not agree with the conclusion arrived at by theHigh Court that after the insertion of Sub-Section (6-A) in Section 11 ofthe Arbitration Act, scope of inquiry by the Court in Section 11 petition isconfined only to ascertain as to whether or not binding arbitration

Aagreement exists qua the parties before it, which is relatable to thedisputes at hand. We are of the opinion that though the Arbitral Tribunalmay have jurisdiction and authority to decide the disputes including thequestion of jurisdiction and non-arbitrability, the same can also beconsidered by the Court at the stage of deciding Section 11 application ifthe facts are very clear and glaring and in view of the specific clauses inBthe agreement binding between the parties, whether the dispute is non-arbitrable and/or it falls within the excepted clause. Even at the stage ofdeciding Section 11 application, the Court may prima facie considereven the aspect with regard to ‘accord and satisfaction’ of the claims.

13.1 Now, so far as the submission on behalf of the respectiveCparties on the decision of the General Manager on Notified Claims inCivil Appeal No.341/2022 arising out of SLP (C) No.13161/2019 isconcerned, the General Manager has decided / declared that the claimsare not arbitrable since they had been settled and the arbitration agreementhas been discharged under Clause 6.7.2.0 of the GCC and no longerDexisted / subsisted. As observed hereinabove, the claims had been settledor not is debatable and disputable question, which is to be left to bedecided by the Arbitral Tribunal. Therefore, matters related to the NotifiedClaims in the facts and circumstances of the case also shall have to beleft to be decided by the Arbitral Tribunal as in the fact situation theaspect of ‘accord and satisfaction’ and ‘Notified Claims’ both areEinterconnected and interlinked.13.2 Now, so far as the Civil Appeal No.342/2022 arising out ofSLP (C) No.13816/2019 is concerned, the General Manager in exerciseof powers under Clause 9.0.2.0 had declared that none of the claims ofthe respondent is Notified Claim. From the communication datedF22.06.2018, it appears that the General Manager, after elaborately dealingwith all the alleged Notified Claims of the respondent has thereafterfound that none of the claims made by the respondent is NotifiedClaim. On conjoint reading of the relevant clauses of the GCC viz.Clauses 9.0.1.0 and 9.0.2.0, the dispute arising out of Notified ClaimsGonly, which is included in the Final Bill of the contractor can be referredto arbitration. However, as per Clause 9.0.2.0, any dispute or differenceon whether or not claim sought to be referred to arbitration by thecontractor is Notified Claim falls within the excluded matters and theArbitrator or Arbitral Tribunal shall have no jurisdiction and/or authoritywith respect thereto. The dispute or difference whether or not claimH

sought to be referred to arbitration by the contractor is Notified Claimshall not and cannot form the subject matter of any reference orsubmission to arbitration. Therefore, on fair and conjoint reading ofClause 9.0.1.0 and 9.0.2.0, it can safely be concluded that (i) only theNotified Claims of the contractor included in the Final Bill of the contractorin accordance with the provisions of Clause 6.6.3.0 shall have to bereferred to arbitration; (ii) whether or not claim sought to be referredto arbitration by the contractor is Notified Claim or not, the Arbitratoror Arbitral Tribunal shall have no jurisdiction at all; (iii) whether or not aclaim is Notified Claim or not shall have to be decided by the GeneralManager and that too, prior to arbitration proceeding with or proceedingfurther with the reference. Therefore, once the General Manager, onthe basis of the material on record takes conscious decision that aparticular claim sought to be referred to arbitration is not NotifiedClaim, such claim thereafter cannot be referred to arbitration. Thelanguage used in Clauses 9.0.1.0 and 9.0.2.0 is very clear andunambiguous.

13.3 As observed hereinabove, parties to the contract are free toagree on applicability of (1) proper law of contract, (2) proper law ofarbitration agreement and (3) proper law of the conduct of arbitration.Parties to the contract also may agree for matters excluded from thepurview of arbitration. As observed by this Court in catena of decisions,unless the effect of agreement results in performance of an unlawfulact, an agreement, which is otherwise legal, cannot be held to be voidand is binding between the parties. At this stage, the decision of thisCourt in the case of Sreekanth Transport (supra) is required to be referredto. In the case before this Court, the contract provided for exclusion ofsome matters from the purview of arbitration. senior officer of thedepartment was given the authority and power to adjudicate the same.One of the clauses provided that the decision of the Senior Officer,being the Adjudicator, shall be final and binding between the parties.This Court considered the same as ‘excepted matters’. In the aforesaiddecision, it is observed and held in paragraph 3 as under:

“3. “Excepted matters” obviously, as the parties agreed, donot require any further adjudication since the agreement itselfprovides named adjudicator - concurrence to the sameobviously is presumed by reason of the unequivocal acceptanceof the terms of the contract by the parties and this is where the

Acourts have found out lacking in its jurisdiction to entertain anapplication for reference to arbitration as regards the disputesarising therefrom and it has been the consistent view that inthe event the claims arising within the ambit of excepted matters,question of assumption of jurisdiction of any arbitrator eitherwith or without the intervention of the court would not arise;BThe parties themselves have decided to have the sameadjudicated by particular officer in regard to these matters:what are these exceptions however are questions of fact andusually mentioned in the contract documents and forms part ofthe agreement as such there is no ambiguity in the matter ofCadjudication of these specialised matters and termed in theagreement as the excepted matters.”

13.4 In that view of the matter, the High Court has misread andmisinterpreted the clauses 9.0.1.0 and 9.0.2.0 and has seriously erred inholding that where there is contestation or the decision rendered by theDGeneral Manager leaves scope for argument as to whether the claimsalleged by the contractor can be categorized as Notified Claim is bestleft to the Arbitral Tribunal. The dispute whether the claim is NotifiedClaim or not is specifically excluded from the scope, purview and ambitof the arbitration agreement. Therefore, once such dispute falls withinthe ‘excepted matters’, any decision by the General Manager on theEissue of Notified Claims cannot be the subject matter of arbitrationproceeding.

13.5 Therefore, the High Court has erred in referring the disputeto arbitration and appointing sole Arbitrator to adjudicate on the disputewith respect to the claims which as such are held to be not NotifiedFClaims by the General Manager. Therefore, the Civil Appeal No.342/2022 arising out of SLP (C) No.13408/2019 as well as Civil AppealNos.343/2022 and 345/2022 arising out of SLP (C) Nos.13813/2019 and13816/2019 respectively deserve to be allowed and the impugnedjudgment and orders passed by the High Court in respective arbitrationGpetitions deserve to be quashed and set aside.

13.6 So far as the Civil Appeal No.344/2022 arising out of SLP(C) No.13815/2019 arising out of the impugned judgment and order passedby the High Court in Arbitration Petition No.407/2018 is concerned, asthe General Manager himself has declared that only one claim of theHrespondent was / is Notified Claim, the said appeal is to be allowed

partly by observing that the claim which is declared by the GeneralManager as Notified Claim only shall have to be referred to arbitrationand the learned Arbitrator shall have no jurisdiction to adjudicate thedisputes with respect to other claims which as such are not declared asNotified Claims by the General Manager.

14. In view of the above and for the reasons stated above, followingorder is passed.

(1)Civil Appeal No.341/2022 arising out of the impugnedjudgment and order passed by the High Court in ArbitrationPetition No.115/2018 is hereby dismissed. However, it isobserved that the learned Arbitrator shall first decide theCaspect with regard to ‘accord and satisfaction’ of the claimsand arbitrability of the disputes with regard to such claimsby deciding an application under Section 16 of the ArbitrationAct, which is reported to be pending. The learned Arbitratorshall first decide the jurisdiction of the Arbitral Tribunal andDthe arbitrability of the claims within period of three monthsfrom the date of first sitting which shall be within periodof one month from today. All the contentions and/ordefences which may be available to the respective partiesare kept open to be considered by the learned Arbitrator inaccordance with law and on its own merits and consideringEthe relevant clauses of the contract and the material onrecord.

(2)Civil Appeal No.342/2022 arising out of the impugnedjudgment and order passed by the High Court in ArbitrationPetition No.356/2018 is hereby allowed. Impugned judgmentand order passed by the High Court in Arbitration PetitionNo.356/2018 referring the dispute between the parties toarbitration and appointing the Arbitrator is hereby quashedand set aside.

(3)Similarly, Civil Appeal No.343/2022 arising out of theimpugned judgment and order passed by the High Court inArbitration Petition No.116/2018 and Civil Appeal No.345/2022 arising out of the impugned judgment and order passedby the High Court in Arbitration Petition No.406/2018 areallowed and consequently, the impugned judgments and

Aorders passed by the High Court in Arbitration PetitionNos.116/2018 & 406/2018 are hereby quashed and setaside.

(4)So far as Civil Appeal No.344/2022 arising out of theimpugned judgment and order passed by the High Court inBArbitration Petition No.407/2018 is concerned, the same ispartly allowed. The impugned judgment and order passedby the High Court in Arbitration Petition No.407/2018 ishereby modified to the extent and it is directed that onlyone claim of the respondent which is declared by the GeneralManager as Notified Claim shall have to be referred toCarbitration and the learned Arbitrator shall adjudicate onlythat claim which is declared by the General Manager as aNotified Claim and the learned Arbitral Tribunal shall nothave any jurisdiction to adjudicate on any other claims whichas such are not declared as Notified Claims.

In the facts and circumstances of the case, there shallbe no order as to costs.

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeals disposed of.