Ram Ratna Infrastructure Private LimitedversusBuildwell AOP

                                                                         arbap309-2026-J.doc


                   Shabnoor
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              ORDINARY ORIGINAL CIVIL JURISDICTION

                              ARBITRATION APPLICATION NO.309 OF 2026


                   Ram Ratna Infrastructure Private
                   Limited                                     … Applicant
                              V/s.
                   Buildwell AOP (erstwhile Sahana Sheth)      … Respondent


SHABNOOR
AYUB               Mr. Mayank Bagla a/w Mr. Swapan Samdani and Nikhil
PATHAN             Narang i/b Swapan Samdani, for the Applicant.
Digitally signed
by SHABNOOR
AYUB PATHAN
                   Mr. Dev Bhankharia, Ms. Riya Vasa and Mr. Rishit Shah
Date: 2026.09.21
11:38:27 +0530     i/b Lexicon Law Partners, for Respondent.



                                     CORAM                  : AMIT BORKAR, J.

                                     RESERVED ON            : SEPTEMBER 18, 2026.

                                     PRONOUNCED ON          : SEPTEMBER 21, 2026.

                   JUDGMENT:

                   1.    By the present Application, the Applicant has approached
                   this Court under Section 11 of the Arbitration and Conciliation Act,
                   1996, as amended from time to time ("the Act"), seeking
                   appointment of a neutral and independent Sole Arbitrator. The
                   Applicant seeks that the disputes which have arisen between the
                   parties in relation to the Work Order be referred to such Arbitrator
                   for adjudication and decision.

                   2.    The Work Order dated 9th February, 2022, bearing reference
                   No. WOJSBWL/00470/2122, contains the dispute resolution



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mechanism agreed between the parties. Paragraph 56 of the said
Work Order, under the heading "Arbitration", contains the
arbitration and jurisdiction clause.

3.      The brief facts of the present case, as stated by the Applicant,
are that the Respondent approached the Applicant for installation,
testing, commissioning and handing over of 338 (three hundred
and thirty-eight) double-stack parking units, hereinafter referred to
as the "Equipment", at its project known as "Beaumonte",
Beaumonte Podium, Sion, hereinafter referred to as the "Site".
Pursuant to this, the Applicant and the Respondent entered into a
Work Order dated 9th February, 2022, bearing reference No.
WOJSBWL/00470/2122, hereinafter referred to as the "said Work
Order". The terms and conditions relating to the work, including
the amount payable for the same, were contained in the said Work
Order. Pursuant to the said Work Order, the Respondent issued a
Purchase Order dated 9th February, 2022, hereinafter referred to
as the "1st PO", bearing Order No. POBMENG/00019/21-22.
Under the 1st PO, the Applicant was required to provide 338
(three hundred and thirty-eight) stack car parking systems.
Thereafter, due to shortage of space at the Site, the Respondent
revised the 1st PO. A revised Purchase Order dated 8th September,
2022,      bearing    Order     No.       POBMENG/00019/21-22/001,
hereinafter referred to as the "2nd PO", was issued. Under the 2nd
PO, the quantity was reduced from 338 (three hundred and thirty-
eight) to 288 (two hundred and eighty-eight) stack car parking
systems, with a revised consideration as stated in the 2nd PO.




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4.   According to the Applicant, although the 2nd PO was for 288
(two hundred and eighty-eight) stack car parking systems, the
space available at the Site did not permit installation of all 288
systems. Consequently, only 212 (two hundred and twelve) stack
car parking systems couldly be installed. The Applicant states that
these 212 systems were duly accepted by the Respondent.
According to the Applicant, the agreed contract value under the
2nd PO for 288 (two hundred and eighty-eight) stack car parking
systems was Rs. 3,97,61,280/- (Rupees Three Crore Ninety-Seven
Lakhs Sixty-One Thousand Two Hundred and Eighty Only),
hereinafter referred to as the "Contract Value". However, because
of the space constraints at the Site, only 212 (two hundred and
twelve) systems could be installed. These systems were handed
over to the Respondent under various handing-over certificates.
The total value of the 212 (two hundred and twelve) stack car
parking systems is stated to be Rs. 3,17,70,320/- (Rupees Three
Crores Seventeen Lakhs Seventy Thousand Three Hundred and
Twenty Only).

5.   The Applicant states that, against the amount of Rs.
3,17,70,320/- (Rupees Three Crore Seventeen Lakhs Seventy
Thousand Three Hundred and Twenty Only), the Respondent has
paid Rs. 2,90,11,155/- (Rupees Two Crore Ninety Lakhs Eleven
Thousand One Hundred and Fifty-Five Only). According to the
Applicant, an amount of Rs. 27,59,165/- (Rupees Twenty-Seven
Lakhs Fifty-Nine Thousand One Hundred and Sixty-Five Only)
remains unpaid. The Applicant states that the last payment made
by the Respondent was on 10th November, 2023, for an amount of




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Rs. 7,10,000/- (Rupees Seven Lakhs Ten Thousand Only). It is
stated that the Respondent deposited TDS of Rs. 10,000/- on 31st
March, 2024. After that, according to the Applicant, no payment
was made by the Respondent. The Applicant claims that the
Respondent is liable to pay Rs. 27,59,165/- (Rupees Twenty-Seven
Lakhs Fifty-Nine Thousand One Hundred and Sixty-Five Only).
The Applicant has claimed interest at the rate of 21%, calculated
from the respective dates of billing up to 17th February, 2026,
which is stated to amount to Rs. 13,07,343/- (Rupees Thirteen
Lakhs Seven Thousand Three Hundred and Forty-Three Only). The
Applicant has claimed a total amount of Rs. 40,66,508/- (Rupees
Forty Lakhs Sixty-Six Thousand Five Hundred and Eight Only). In
these circumstances, the Applicant submits that disputes and
differences have arisen between the parties in relation to the said
Work Order.

6.    Learned Advocate for the Respondent submits that the
Purchase Order dated 8th September, 2022 provides that the
Courts at Mumbai shall have exclusive jurisdiction to decide the
disputes between the parties. According to the learned Advocate
for the Respondent, the present Application proceeds on an
incorrect assumption that the Work Order dated 9th February,
2022, hereinafter referred to as the "said Work Order", is the main
contract governing the rights and obligations of the parties. It is
submitted that the final contract between the parties was in fact
the Purchase Order dated 8th September, 2022, hereinafter
referred to as the "2nd PO". The 2nd PO provides that the disputes
between the parties shall be subject to the exclusive jurisdiction of




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the Courts at Mumbai. The relevant clause of the 2nd PO reads as
under:

      "This Purchase Order is Subject to Jurisdiction of the
      Mumbai High Court Only."
7.    It is submitted that the above clause forms part of the final
arrangement between the parties and shows the understanding of
the parties regarding the forum for deciding their disputes.
According to the Respondent, the Applicant cannot rely upon the
arbitration clause contained in the said Work Order while ignoring
the subsequent arrangement between the parties and the specific
jurisdiction clause contained in the 2nd PO. It is submitted that the
parties are bound by the terms which they have agreed to and one
party cannot change or replace those terms on its own. It is
submitted that the facts stated hereinafter show that the 2nd PO
was the final and only contract which continued to operate
between the parties. Learned Advocate for the Respondent submits
that, as is clear from the present Application, after the said Work
Order was issued, the Respondent issued a Purchase Order dated
9th February, 2022 in favour of the Applicant, which is referred to
as the "1st PO". However, for various reasons, the parties did not
act upon the 1st PO and the same was not acted upon.

8.    It   is   submitted   that   the   Applicant   approached       the
Respondent again and fresh discussions and negotiations took
place between the parties. These discussions continued for more
than six months and covered the terms of the transaction, the
specifications, the requirements and the amount to be paid for the
car parking system. These discussions resulted in the Respondent




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issuing a fresh Purchase Order dated 8th September, 2022,
referred to as the "2nd PO". According to the Respondent, the 2nd
PO materially changed the important terms contained in the 1st
PO and the said Work Order. These changes included, amongst
other things, the payment terms and time for payment, the
jurisdiction clause, the reduction in the number of car parking
stackers from 338 to 288 and to 212, and the corresponding
reduction in the total order value from approximately Rs.
4,66,64,280/- to Rs. 3,97,61,280/- and to Rs. 3,17,70,320/-. It is
submitted that the 2nd PO introduced, for the first time, a fresh list
of approved makes and vendors for structural steel, hydraulic
cylinders, power packs, control valves, sensors, control panels and
other important components. According to the Respondent, these
changes altered the technical requirements relating to the supply.

9.    Learned Advocate for the Respondent submits that these
changes were substantial. According to him, they affected the basic
terms of the transaction. It is submitted that the 2nd PO
represented   a   fresh   and    materially   changed     commercial
arrangement between the parties. It is submitted that even if the
Applicant's case is accepted, for the sake of argument, that the said
Work Order was the main and concluded contract between the
parties, there would have been no reason for the parties to
materially change its terms through negotiations extending over a
period of about six months.

10.   It is submitted that all subsequent dealings between the
parties were made with reference to the 2nd PO and not to the
said Work Order. The invoices raised by the Applicant between



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15th June, 2022 and 27th January, 2024, as well as the four
Handing Over Certificates dated 15th November, 2022, 20th
February, 2023, 28th September, 2023 and 1st January, 2024, were
based on the quantities and rates mentioned in the 2nd PO and the
understanding which followed thereafter. It is submitted that after
8th September, 2022, neither party acted upon or relied upon the
terms of the said Work Order. It is pointed out that the 2nd PO
does not make any reference to the said Work Order.

11.   According to the Respondent, the execution of the 2nd PO,
containing these material changes, shows that the parties
negotiated and consciously entered into a fresh and modified
arrangement after the said Work Order. The Respondent submits
that the 2nd PO became the operative contract between the parties
and continued to govern their transaction at all relevant times. It is
submitted that there is no subsisting and valid arbitration
agreement governing the transaction between the parties. On this
basis, according to the Respondent, the disputes raised by the
Applicant cannot be referred to arbitration.

12.   The Respondent submits that the Applicant's reliance upon
the said Work Order for invoking arbitration is misconceived. Even
if it is assumed that the said Work Order continued to govern the
obligations of the parties, the disputes raised by the Applicant
could still not be referred to arbitration in view of the express
provision contained in Clause 3 of the said Work Order. Learned
Advocate for the Respondent submits that the Applicant has
invoked arbitration in respect of the alleged disputes by relying
upon Clause 56 of the said Work Order. However, the Respondent



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submits that while relying upon Clause 56, the Applicant has not
referred to Clause 3 of the said Work Order. According to the
Respondent, Clause 3 expressly provides that no arbitration is
permitted in respect of disputes or differences between the parties.
The relevant clause reads as under:

      "3. Disputes: No arbitration is allowed. In case of disputes
      or     difference    of     opinion    arising between   the
      client/consultant/their representatives and the Contractor,
      the decision of Consultant/Technical Director/Site in Charge
      of client will be final in this case."

13.   In this background, the Respondent submits that the
Applicant has not placed before the Court the contemporaneous
correspondence exchanged between the parties. According to the
Respondent, this correspondence shows that the amount claimed
by the Applicant was neither admitted nor an undisputed debt.
The Respondent had, on several occasions, pointed out defects and
deficiencies in the equipment supplied and installed by the
Applicant. These included hydraulic oil spillage, improper fixing
and levelling, defects in stack levels and movement, and
incomplete or defective work. It is submitted that the relevant Bill
Certificates and Quality Certificates show deductions towards the
amounts withheld on account of the remarks recorded in those
certificates. According to the Respondent, these documents show
that deductions were made on account of deficiencies in the
services and that the amounts claimed by the Applicant were never
treated by the Respondent as unconditional amounts which were
due and payable.




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REASONS AND FINDINGS:

14.   I have heard the submissions made by the learned Advocate
for the Applicant as well as the learned Advocate for the
Respondent. The question which is required to be seen is whether
the claim which the Applicant wants to take to arbitration is
covered by an arbitration agreement which continues to remain
binding between the parties.

15.   Before considering the submissions of both sides, one aspect
is required to be seen. The Work Order dated 9th February, 2022 is
admittedly signed by both the parties. It bears reference No.
WOJSBWL/00470/21-22. In the said Work Order, the work is
stated to be for "installation of stack parking units at Beaumonte,
Sion". It is stated that the work was to be carried out as per the
schedule of items and the terms and conditions agreed between
the parties. The said Work Order has been accepted by Ram Ratna
Infrastructure Pvt. Ltd. Therefore, at least from this document, it
cannot be said that the Work Order was only a quotation or that it
never became binding upon the parties. The terms and conditions
attached to the Work Order are signed and accepted by both the
parties. Clause 5 provides for payment of "100% against
installation; commissioning & final handing over at site". The Work
Order contains terms regarding completion of the work,
maintenance, retention money and other obligations of the
Contractor. Therefore, from the document, it is seen that the Work
Order did create obligations between the parties.

16.   The Applicant is relying upon Clause 56 of the Work Order.
The said clause is under the heading "Arbitration". It reads as



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under:

      "56. Arbitration:- Any and all disputes arising out of or in
      connection with or in the implementation of this-agreement
      shall be, so far as possible, settled amicably through
      discussion and by conciliation. Failing such amicable
      settlement, any such dispute shall be settled by arbitration to
      be held in Mumbai India in the English language under the
      provisions of the Arbitration and Conciliation Act, 1996."

17.   The said clause provides for appointment of two arbitrators
and the appointment of the third arbitrator by those two
arbitrators. Therefore, Clause 56 provides that "any and all
disputes" arising out of or connected with the agreement shall be
settled by arbitration if the dispute is not settled amicably. The
Respondent has brought to the notice of the Court Clause 3 of the
same Work Order. Clause 3 is under the heading "Disputes" and
reads as under:

      "3. Disputes; No arbitration is allowed. In case of disputes
      or     differance.    of opinion       arising between   the
      client/consultant Itheir representatives. and the Contractor,
      the decision of Consultant/Technical Director/Site in Charge
      of client will be final in this case."

18.   This submission of the Respondent requires consideration.
Clause 3 and Clause 56 are not easy to read together. Clause 3 says
"No arbitration is allowed". On the other side, Clause 56 says that
"any and all disputes" shall be settled by arbitration. Thus, when
the Work Order is seen, there appears to be a difference between
these two clauses. However, merely because Clause 3 is contained
in the Work Order, Clause 56 cannot be ignored. Clause 56 is




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separately given the heading "Arbitration". It provides a complete
procedure for arbitration. It gives the place of arbitration, the
language in which the arbitration is to be conducted, the
Arbitration and Conciliation Act, 1996 under which it is to take
place and the manner in which the arbitrators are to be appointed.
Therefore, if the Work Order is considered, there is a written
provision which does provide for arbitration.

19.   The Supreme Court has held that while considering an
application under Section 11, the main question at this stage is to
see whether     there is   an   arbitration     agreement. In      Ajay
Madhusudan Patel v. Jyotrindra S. Patel, 2024 INSC 710, the
Supreme Court has observed that the Court has to examine
whether the agreement contains an arbitration clause for deciding
the disputes which have arisen between the parties. It has been
observed that this exercise should not become a detailed trial on
disputed questions. The Supreme Court has held that where there
is a genuine dispute regarding the existence or validity of an
arbitration agreement, the Court should be slow in conducting a
mini-trial while deciding a Section 11 application. The arbitral
tribunal has power under Section 16 to decide its own jurisdiction,
including objections relating to the existence or validity of the
arbitration agreement.

20.   In the present matter the issue does not end merely because
Clause 56 is found in the Work Order. The question which becomes
important is whether the particular claim made by the Applicant is
a claim arising from the Work Order containing Clause 56. This
question becomes necessary because the Respondent is relying


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upon the subsequent Purchase Orders and says that the transaction
for which the Applicant is now claiming the amount was governed
by those Purchase Orders. The documents placed before the Court
show that the Work Order and the Purchase Orders are different
documents and their terms are different. The Work Order dated
9th February, 2022 is for installation, testing, commissioning and
handing over of stack parking units. In its Schedule of Items, the
work is described as "Labour charges for installation, testing,
commissioning & handing over of double stack parking units". The
quantity mentioned is 338 units and the rate is Rs.10,000/- per
unit. The total amount including taxes is shown as Rs.39,88,400/-.

21.   As stated in paragraph 7 of the Applicant's case, the
Applicant claims Rs.3,17,70,320/- as the value of 212 stack car
parking systems. In paragraph 8, it is stated that after the
payments already made, an amount of Rs.27,59,165/- is still
unpaid. In paragraph 9, interest of Rs.13,07,343/- has been
claimed. Therefore, the total claim made by the Applicant is
Rs.40,66,508/-. These figures are not the same as the value which
is shown in the Work Order. The Work Order shows the
approximate value of the work as Rs.39,88,400/-. The Schedule
shows the basic amount as Rs.33,80,000/- and after adding CGST
and SGST, the total comes to Rs.39,88,400/-. This difference is
connected with the nature of the contract under which the
Applicant is   making    its claim. The Applicant's       claim      of
Rs.3,17,70,320/- for 212 units is much higher than the entire
value of the Work Order. Therefore, only because the Work Order
contains an arbitration clause, it cannot be said that every claim




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relating to the parking systems between the parties will be covered
by that arbitration clause. The subsequent Purchase Order dated
8th September, 2022 requires consideration. The document is
described as "PURCHASE ORDER AMENDMENT". It shows the old
quantity as 338 and the new quantity as 288. The total order value
is shown as Rs.3,97,61,280/-. The document contains various
technical specifications and terms regarding payment, delivery,
warranty and maintenance. At the bottom of the document, it
states:

      "This Purchase Order is Subject to Jurisdiction of the
      Mumbai High Court Only."
22.   The said document is signed by both parties. The subsequent
Purchase Order cannot be ignored while considering whether the
claim made by the Applicant comes within the arbitration clause
contained in the Work Order. However, I am unable to accept the
submission of the Respondent in paragraph 3 in its entirety that
the 2nd PO ended or cancelled the Work Order. There is no specific
clause in the 2nd PO placed before the Court which says that the
Work Order dated 9th February, 2022 was cancelled or replaced. In
fact, the document is described as a "PURCHASE ORDER
AMENDMENT". It changes the quantity from 338 to 288 and
records the changed commercial value. It gives the reason for
amendment in relation to additional approved makes. Therefore,
merely because the document was issued later, it cannot be said
that every term and obligation contained in the earlier Work Order
came to an end.




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23.   The Respondent has relied upon the jurisdiction clause
contained in the 2nd PO. This submission is relevant when the
Purchase Order is considered. But merely because a later
document provides that a particular Court shall have jurisdiction,
it does not by answer the different question as to whether the
arbitration clause contained in the earlier document has been
cancelled. These are two separate questions and both are required
to be considered separately. In the present case, the Work Order
provides that arbitration shall be held in Mumbai. Therefore, even
the arbitration clause in the Work Order has a connection with
Mumbai. The later statement in the Purchase Order that it is
"Subject to Jurisdiction of the Mumbai High Court Only" cannot,
by, be treated as an express cancellation of Clause 56 of the Work
Order.

24.   The Supreme Court has held that where a particular place is
designated as the seat of arbitration, the Courts at that place have
supervisory jurisdiction over the arbitration. Therefore, a clause
giving jurisdiction to the Courts at the place connected with
arbitration is not inconsistent with the existence of an arbitration
agreement.

25.   The    Respondent   has    submitted   that   the    Applicant
deliberately did not disclose Clause 3 of the Work Order.          The
Applicant has relied upon Clause 56, whereas Clause 3 is an
important clause because it says "No arbitration is allowed". It
would have been proper for the Applicant to bring the complete
relevant terms before the Court. However, merely because the
Applicant did not refer to Clause 3, it cannot be said that there is



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no arbitration agreement at all. The complete Work Order is before
the Court and both Clause 3 and Clause 56 can be considered
together.

26.   The Respondent says that the transaction for supply of the
parking systems was governed by the subsequent Purchase Order.
The documents support this submission to some extent. The 2nd
PO mentions 288 car parking stackers, the total order value of
Rs.3,97,61,280/- and detailed technical specifications. Its second
page contains specifications regarding the hydraulic system, lifting
capacity, power unit, hydraulic pressure, platform dimensions,
safety devices and the approved makes of various components. The
Work Order deals with installation, testing, commissioning and
handing over. Its Schedule gives the rate as labour charges of
Rs.10,000/- per unit. This difference between the two documents
is important. Both documents may relate to the same project and
the same parking system. But only because they relate to the same
project, their terms cannot be put together without seeing what
each document provides. It may be that both documents were part
of one larger commercial transaction. That possibility cannot be
ruled out. But while deciding the Section 11 application, the Court
has to see whether the particular dispute which the Applicant
wants to send to arbitration is covered by the arbitration clause
relied upon by the Applicant. Merely because the two documents
are connected in the business transaction, it does not mean that
the arbitration clause in one document will apply to every dispute
arising under the other document.




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27.   The Applicant has relied upon the broad words "Any and all
disputes arising out of or in connection with or in the
implementation of this agreement" appearing in Clause 56. These
words are certainly wide. But the words "this agreement" are
important. The clause speaks about disputes arising from or
connected with that agreement, namely the Work Order. It does
not say that every dispute arising from every later Purchase Order
between the parties shall be referred to arbitration. But merely
finding an arbitration clause in the Work Order does not finish the
matter. The Applicant must show that the dispute which it wants to
send to arbitration is a dispute arising under that Work Order. On
this aspect, the Applicant has not been able to connect the present
monetary claim with the Work Order.

28.   The Work Order records the total value at Rs.39,88,400/-.
The Applicant's claim is based upon a value of Rs.3,17,70,320/- for
212 systems. This later figure is of a different commercial nature.
It appears to be much closer to the transaction recorded in the
subsequent Purchase Order than to the installation and labour
work described in the original Work Order. The Respondent has
raised the question of defects in the equipment. It is stated that
there were complaints regarding hydraulic oil spillage, improper
fixing and levelling, defects in stack levels and movement and
incomplete or defective work. The Respondent has relied upon Bill
Certificates and Quality Certificates where, according to the
Respondent, deductions were made. At this stage, I am not
inclined to record that these alleged defects have been proved. The
complete correspondence and the Bill Certificates and Quality




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Certificates relied upon by the Respondent are not placed before
the Court in the material which is presently available for
consideration. Therefore, merely because such allegations have
been made by the Respondent, they cannot be treated as proved
facts. At the same time, the submission of the Respondent that the
Applicant's claim is disputed cannot be rejected only because the
Applicant has raised invoices. The Respondent has disputed the
liability and has referred to deductions and alleged deficiencies.
Therefore, at this stage, the amount claimed by the Applicant
cannot be treated as an admitted debt. But this issue will have to
be decided by the forum which has jurisdiction to decide the
monetary dispute. A disputed claim by cannot create an arbitration
agreement when the particular claim is not covered by such
agreement.

29.   The same position applies to the Applicant's claim for
interest at 21%. Whether the Applicant is entitled to such interest,
whether the rate of 21% is supported by the contract and from
which date the interest can be calculated are questions which are
not required to be decided in the present proceedings. These
questions can arise only if the Applicant establishes the basis of
such claim before the forum which has jurisdiction to decide it.

30.   On considering all the documents together, I find that the
Respondent is not correct in saying that the 2nd PO, only because
it was issued later, cancelled every part of the Work Order. The
Work Order continued to operate in respect of the work covered by
it. Clause 56 of the Work Order contains an arbitration provision.
But the Applicant has to establish something more than merely



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showing Clause 56. The present monetary claim is based upon the
later Purchase Order and the supply of parking systems. The value
claimed for 212 systems is not the value mentioned in the Work
Order. The 2nd PO contains its own quantity, price, commercial
terms and technical specifications. It states that it is subject to the
jurisdiction of the Mumbai High Court only. Therefore, merely
because the Work Order and the 2nd PO relate to the same project,
the present claim cannot be treated as a claim arising under the
Work Order.

31.   I find that the arbitration clause contained in Clause 56 of
the Work Order cannot be extended to the present monetary claim
arising from the subsequent Purchase Order. There is no
arbitration clause shown in the 2nd PO. The jurisdiction clause
contained in that Purchase Order cannot be treated as an
arbitration agreement. The words "This Purchase Order is Subject
to Jurisdiction of the Mumbai High Court Only" speak about the
Court having jurisdiction. They do not state that the disputes
between the parties are to be referred to arbitration. Therefore, the
alternative submission of the Respondent based upon Clause 3 of
the Work Order does not require a final finding in favour of the
Respondent. Clause 3 does create a conflict with Clause 56. But
since Clause 56 contains an express arbitration provision, I would
not dismiss the Applicant's case only because Clause 3 contains the
words "No arbitration is allowed". The Application fails for another
reason. The particular dispute which the Applicant wants to refer
to arbitration is not shown to be covered by the arbitration
agreement contained in the Work Order.




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32.   I find that the allegation of the Respondent that the
Applicant suppressed correspondence and information relating to
defects has not been established from the material presently before
the Court. Such allegations may have relevance when the
monetary claim is considered. But they do not decide the question
whether there is an arbitration agreement. In the same way, the
assertion of the Applicant that the amount is due and payable
cannot create an arbitration agreement.

33.   At the stage of considering an application under Section 11,
the Court has to see whether an arbitration agreement exists and
should not conduct a full trial regarding the monetary claim. The
Supreme Court has made it clear that the Court should not
conduct a mini-trial into disputed facts at this stage. In the present
matter the basic documents show that the present claim of the
Applicant is based upon the subsequent Purchase Order and that
Purchase Order does not contain an arbitration clause. This
question does not require evidence or a detailed trial. It can be
seen from the documents.

34.   Therefore, while I find that Clause 56 of the Work Order
contains an arbitration agreement, I find that the present claim
made by the Applicant is not shown to be covered by that
arbitration agreement. The subsequent Purchase Order dated 8th
September, 2022 contains a clause relating to jurisdiction of the
Mumbai High Court, but it does not contain an arbitration
agreement. The Respondent has succeeded in showing that the
present dispute cannot be referred to arbitration on the basis of
Clause 56 of the Work Order.



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35.   For the reasons stated above, the Application filed under
Section 11 of the Arbitration and Conciliation Act, 1996 cannot be
allowed. The Application is liable to be dismissed. This dismissal is
on the finding that the present claim is not covered by the
arbitration agreement relied upon by the Applicant. I have not
given any final finding as to whether the Applicant isly entitled to
the amount claimed, whether the alleged defects in the equipment
were in fact present, whether the deductions were properly made,
whether the Applicant is entitled to interest or what exact amount,
if any, is payable by the Respondent. These questions are kept open
for being decided by the forum otherwise competent to decide the
dispute in accordance with law.

36.   The Application under Section 11 of the Arbitration and
Conciliation Act, 1996, seeking appointment of an Arbitrator, is
dismissed.

37.   There shall be no order as to costs.

                                             (AMIT BORKAR, J.)




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