Ms Jayant Infratech Ltd Through its Authorised Representative Mr Rishi Jashwant Rai KariaversusMs RCCPL Private Limited

                                                                           carap397-2026-J.doc


                      AGK
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 ORDINARY ORIGINAL CIVIL JURISDICTION
                                      IN ITS COMMERCIAL DIVISION

                            COMM ARBITRATION APPLICATION NO.397 OF 2026

                      Jayant Infratech Limited                       … Applicant

                                           Vs.

                      RCCPL Private Limited                          … Respondent


ATUL                  Mr. Yahya Ghoghari with Mr. Urusah M.I. i/by Dave &
GANESH
KULKARNI              Co., for the Applicant.
Digitally signed by
ATUL GANESH
KULKARNI
                      Ms. Manjiri Parasnis with Mr. Tarun Shrivastava, and
Date: 2026.10.05
11:26:46 +0530
                      Ms. Samiksha Lokhande i/by Tarun Shrivastava for the
                      Respondent.


                                        CORAM                  : AMIT BORKAR, J.

                                        RESERVED ON            : SEPTEMBER 30, 2026

                                        PRONOUNCED ON          : OCTOBER 5, 2026

                      JUDGMENT:

                      1.    The present Application has been filed under Section 11 of
                      the Arbitration and Conciliation Act, 1996, by the Applicant
                      seeking appointment of a Sole Arbitrator for adjudication of the
                      disputes arising out of and in connection with the contract entered
                      into between the Applicant and the Respondent for supply,
                      installation, testing and commissioning of OHE (Overhead
                      Equipment, meaning the electric wires and fittings used for
                      supplying power to trains) and PSI (Power Supply Installation,



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meaning the system through which electricity is supplied to the
railway network) works at the Respondent's Mukutban siding in
the Wani-Pimpalkhuti Section of Nagpur Division under Central
Railway.

2.   According to the Applicant, the arbitration clause is
contained in Clause 18 of the General Conditions of Contract,
which forms part of the tender and contractual documents
exchanged between the parties through email communications.
The said clause provides for settlement of disputes through
arbitration at Mumbai. According to the Applicant, it duly
completed the contractual work and Central Railway issued the
Energisation Certificate dated 8 April 2024 confirming that the
installation had been energised. After expiry of the Defects
Liability Period on 10 April 2025, the retention amount of
Rs.55,98,780/- became payable to the Applicant. However, despite
repeated reminders and communications, the Respondent failed to
release the said amount. Thereafter, in accordance with Clause 18
of the General Conditions of Contract, the Applicant issued a
Notice of Dispute dated 21 November 2025, calling upon the
Respondent to resolve the disputes amicably. As the disputes were
not resolved, the Applicant invoked the arbitration agreement
under Section 21 of the Arbitration and Conciliation Act, 1996, by
Advocate's   Notice   dated   8   January   2026    and    proposed
appointment of a Sole Arbitrator. Despite receiving the said notice,
the Respondent did not agree to the appointment of an Arbitrator
within the prescribed period. Instead, the Respondent raised
disputes relating to alleged delay, liquidated damages and other



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matters, which according to the Applicant were contrary to the
agreed mechanism for resolution of disputes.

3.   According to the Applicant, the following facts led to the
filing of the present Application. On 8 February 2023, the
Respondent forwarded the tender documents to the Applicant for
execution of OHE and PSI works at Mukutban siding. The said
tender documents contained an arbitration clause in Clause 18 of
the General Conditions of Contract. On 18 April 2023, the parties
held a techno-commercial discussion and negotiation meeting.
Thereafter, by email dated 26 April 2023, the parties confirmed the
contractual terms which had been agreed between them, including
the General Conditions of Contract and the arbitration clause. On
2 May 2023, the Respondent issued Consolidated Purchase Order
No. G1-14-22-SP-2 in favour of the Applicant. On 6 September
2023, the said Consolidated Purchase Order was divided, for the
purpose of execution, into Work Order No. 23782614 and
Purchase Order No. 23124020. During the period from January to
April 2024, the final checking of the work and the process of
energisation were undertaken. On 8 April 2024, Central Railway
issued an Energisation Certificate confirming that the system had
been energised on 10 April 2024. According to the Applicant, upon
expiry of the Defects Liability Period on 10 April 2025, the
retention amount became due and payable. The Applicant issued
the first reminder on 5 May 2025 requesting the Respondent to
release the retention amount. A second reminder was issued on 26
June 2025 seeking payment of the outstanding amount. Since the
amount was still not released, the Applicant issued a third



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reminder on 24 July 2025.

4.   On 21 November 2025, the Applicant issued a Notice of
Dispute under Clause 18 of the General Conditions of Contract and
called upon the Respondent to resolve the disputes amicably. As
the disputes remained unresolved, the Applicant invoked the
arbitration agreement under Section 21 of the Arbitration and
Conciliation Act, 1996, by notice dated 8 January 2026 and
proposed appointment of a Sole Arbitrator. On 16 February 2026,
the Respondent sent its reply disputing the Applicant's claims. The
Respondent alleged delay in execution of the work and raised
claims towards liquidated damages. During February and March
2026, the Respondent did not agree to the appointment of the
Arbitrator within the stipulated period. As the agreed procedure
for appointment of the Arbitrator did not result in appointment of
an Arbitrator, the Applicant filed the present Commercial
Arbitration Application under Section 11 of the Arbitration and
Conciliation Act, 1996, in April 2026.

5.   Mr. Ghogari, learned Advocate appearing for the Applicant,
submitted that the Reply filed by the Respondent accepts the
existence of an arbitration agreement. According to him, once the
existence of an arbitration agreement is admitted, the principal
enquiry under Section 11 of the Arbitration and Conciliation Act,
1996 comes to an end. He submitted that the entire case of the
Respondent proceeds on the basis that there is a binding
arbitration agreement in writing between the parties. The
Respondent has relied upon and reproduced Clause 20, titled
“ARBITRATION”, forming part of the document described by the



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Respondent as the “General Terms and Conditions”. The
Respondent has pleaded that “the arbitration agreement contained
in   the   tender   document   was    superseded   by      subsequent
agreements”. According to the learned Advocate, this plea assumes
that there was an arbitration agreement in the subsequent
documents. He submitted that, although the Respondent refers to
a subsequent agreement, it has not stated when or in what manner
the Applicant accepted such alleged subsequent agreement.

6.    The learned Advocate submitted that the existence of an
arbitration agreement between the parties is therefore not
seriously disputed. According to him, the Respondent's case, at the
highest, is that a different arbitration clause governs the disputes
between the parties and that the seat of arbitration is elsewhere.
Such a contention concerns the interpretation, applicability, and
construction of the alleged arbitration clause. It does not amount
to a denial of the existence of an arbitration agreement. He
submitted that the reliance placed by the Respondent upon a
different arbitration clause is misconceived because no such clause
was ever agreed to, executed or incorporated into the contract
between the parties. The learned Advocate submitted that, even
according to the Respondent's own case, the disputes are required
to be referred to “a sole arbitrator to be mutually appointed by the
Parties under the provisions of the Arbitration and Conciliation
Act, 1996”.

7.    He submitted that it is an admitted position that the
Respondent has not agreed to the appointment of any Arbitrator.
In its letter dated 16 February 2026, the Respondent has stated



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that it “does not consent to any unilateral appointment or proposal
of an arbitrator”. No Arbitrator has been appointed till date.
According to the learned Advocate, the agreed procedure for
appointment of the Arbitrator has therefore failed. Consequently,
the jurisdiction of this Court under Section 11(6) of the Arbitration
and Conciliation Act, 1996 is attracted even on the Respondent's
own case. This would be so irrespective of which of the two
documents or clauses is ultimately found to govern the
relationship between the parties. The learned Advocate submitted
that the enquiry of this Court under Section 11 of the Act is limited
to examining the existence of an arbitration agreement, subject to
the principles laid down by the Supreme Court.

8.    He submitted that all other questions raised by the
Respondent are matters for consideration by the Arbitral Tribunal.
These include the question whether the tender conditions were
superseded, which document governs the relationship between the
parties, the alleged misjoinder of causes of action, the alleged
delay, the entitlement to liquidated damages, withholding, or
adjustment of retention money, and the counter-claims proposed
by the Respondent. According to him, the Arbitral Tribunal is fully
competent to consider these questions, including the question of
its own jurisdiction under Section 16 of the Act. He submitted that,
even assuming that this Court were to examine any of these
objections at this stage, the Respondent's own pleadings and
contractual   documents    are   mutually   inconsistent.    On      the
Respondent's own showing, they establish the existence of an
arbitration agreement and establish that the agreed procedure for



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appointment of the Arbitrator has failed.

9.    He pointed out that the Applicant has placed on record the
tender document forwarded by the Respondent under cover of its
email dated 8th February 2023. The Applicant has placed on
record the email dated 26 April 2023 recording the terms agreed
between the partie. The Applicant has produced the operative
contractual documents, namely Purchase Order No. G1-14-22-SP-2
dated 2 May 2023, marked as Exhibit “D1”, Work Order No.
23782614 dated 6 September 2023, marked as Exhibit “D2”, and
Purchase Order No. 23124020 dated 6 September 2023, marked as
Exhibit “D3”. He therefore submitted that there has been no
suppression of any material document by the Applicant. The
learned Advocate submitted that, on the contrary, the Respondent
has selectively produced only those documents which support its
case and has not placed the complete contractual record before the
Court. He submitted that the Applicant has produced the operative
Purchase Order bearing Ref. No. G1-14-22-SP-2 dated 2 May 2023,
Purchase Order No. 23124020 dated 6 September 2023 and Work
Order No. 23782614 dated 6 September 2023.

10.   As specifically stated in paragraph 8 of the Application,
Purchase Order No. 23124020 and Work Order No. 23782614
were issued in substitution of the earlier Purchase Order dated 29
May 2023 and Work Order dated 8 May 2023 respectively. There
was, however, no change in the scope of work. According to the
learned Advocate, a plain reading of these operative contractual
documents shows that they refer to and incorporate the General
Conditions of Contract contained in the Tender, as mutually agreed



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between the parties. These documents, therefore, do not support
the Respondent's contention that the tender conditions had been
superseded or had ceased to govern the contractual relationship
between the parties.

11.   The Respondent has stated that Clause 18 “has been
superseded by a duly executed definitive agreement as mutually
agreed between the parties, which is the governing document
between the parties”. He submitted that no such “duly executed
definitive agreement” has been annexed to the Reply. It has not
even been identified or described in the Reply. According to him,
the reason is simple. No such agreement exists. He submitted that
there is no separately executed comprehensive agreement between
the parties which supersedes the tender documents. According to
him, the contractual relationship between the parties arose from
the tender process, the exchange of emails recording the agreed
terms, and the Purchase Orders and Work Order issued thereafter.
He pointed out that the Purchase Orders relied upon by the
Respondent themselves contain the endorsement “SINCE IT IS A
COMPUTER GENERATED COPY, NO SIGNATURE IS REQUIRED”.
They state that “You are requested to confirm your acceptance or
issue about the Purchase Order within 5 days, failing which we
will consider it as accepted.”

12.   The   learned    Advocate   therefore   submitted   that     the
Respondent's stand is internally inconsistent. On the one hand, the
Respondent contends that the Tender General Conditions of
Contract were “neither accepted nor executed”. On the other hand,
it relies upon unsigned, computer-generated Purchase Orders,



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which according to their own terms could be treated as accepted
by conduct, as constituting the governing contract between the
parties. He submitted that the entire case of the Respondent
regarding supersession is based upon certain loose documents
described as “General Terms and Conditions for Purchase Order”.
According to him, these documents have not been shown to have
been specifically incorporated into the contract between the
parties. He pointed out that these documents do not bear any
signature or date. They do not bear any letterhead, header, or
footer. They do not contain any reference to a particular Purchase
Order or contract. They do not disclose their authorship or source.
He submitted that the Respondent has neither pleaded nor
established when, how or by whom these alleged terms were
communicated to the Applicant, accepted by the Applicant, or
incorporated into the contractual arrangement between the
parties.

13.    According to the learned Advocate, such unattested loose
sheets cannot constitute a concluded contractual arrangement and,
in    any   event,   cannot   supersede   an   existing      contractual
arrangement. He submitted that the operative Purchase Orders
themselves refer to the General Terms and Conditions “as mutually
agreed between Jayant Infratech Limited & RCCPL Private
Limited”. The Purchase Orders do not record any agreement by
which the arbitration agreement contained in Clause 18 of the
Tender General Conditions of Contract was excluded, superseded
or substituted. The learned Advocate lastly submitted that it is
settled law that an arbitration agreement need not necessarily be



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contained in a separately signed contract.

14.   He referred to Section 7(4)(b) and Section 7(4)(c) of the
Arbitration and Conciliation Act, 1996, which recognise an
arbitration agreement arising from an exchange of letters, telex,
telegrams or other means of telecommunication, including
electronic means, and from an exchange of statements of claim
and defence in which the existence of the agreement is alleged by
one party and not denied by the other. He therefore submitted that
the Respondent's contention that no contract could have been
concluded through an exchange of emails is contrary to the
express provisions of Section 7 of the Act.

15.   Ms.   Parasnis,   learned    Advocate   appearing     for     the
Respondent, submitted that the Applicant has invoked Clause 18 of
the Tender Document in the present Application. She submitted
that it is admitted that the tender document was issued by the
Respondent for installation, testing and commissioning of OHE
and PSI works for the private railway siding of RCCPL at
Mukutban. According to her, the tender document was issued only
for setting out the terms and conditions of the tender process. The
document titled “General Conditions of Contract”, which was
annexed to the tender, was only indicative in nature. She
submitted that the document annexed to the present Application
was neither accepted nor executed by the parties. She pointed out
that the Applicant is relying upon the email communication dated
8 February 2023. According to her, the said email merely invited
the Applicant to submit its offer for the project in accordance with
the terms and conditions contained in the tender.



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16.   Ms. Parasnis submitted that the Applicant thereafter became
the successful tenderer and the project was awarded to it.
According to her, the tender process came to an end once the
Applicant was selected as the successful tenderer. Therefore, the
tender document, including the arbitration clause contained
therein, ceased to operate upon completion of the tender process.
She submitted that thereafter the Respondent issued a Letter of
Intent bearing Ref. No. G1-14-22-SP-2 dated 2 May 2023. The said
Letter of Intent stated that a detailed contract or order, together
with the scope of services and the applicable terms and conditions
mutually agreed between the parties, would be issued. She
submitted that pursuant to the said Letter of Intent, two Purchase
Orders, namely PO No. 23746311 dated 5 May 2023 and PO No.
23122464 dated 29 May 2023, were issued to the Applicant. The
General Conditions of Contract and Special Conditions of Contract
were annexed to these documents and, according to the
Respondent, together constituted the governing contractual
documents between the parties. She submitted that a reading of
the said Purchase Orders and Work Order would show that they
referred to “General Terms and Conditions”, which were annexed
to those orders. According to her, the Applicant accepted the said
Purchase Orders and Work Order along with the General Terms
and Conditions forming part thereof.

17.   Ms.   Parasnis,   learned    Advocate   appearing    for     the
Respondent, submitted that the Applicant has not placed the
complete contractual documents before the Court and has
deliberately relied upon only those documents which support its



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case. According to her, the Applicant has suppressed the “General
Terms and Conditions” which formed part of the Purchase Orders
and Work Order issued. She submitted that the Respondent is
relying upon Clauses 20 and 21 of the said General Terms and
Conditions. Learned Advocate invited the attention of the Court to
Clause 20, titled “ARBITRATION”, contained in the General Terms
and Conditions. She submitted that Clause 20 provides that, if any
question, dispute, difference, or claim arises between the parties
out of or in connection with the contract, the parties would first
attempt to resolve the dispute through amicable consultations
within thirty days. She submitted that Clause 20(b) provides that,
if the dispute is not resolved through such consultations, the
dispute would be referred to arbitration by a Sole Arbitrator to be
mutually appointed by the parties under the provisions of the
Arbitration and Conciliation Act, 1996, including any statutory
modification thereof. She pointed out that Clause 20(c) provides
that the arbitration would be held at Kolkata and that the language
of the arbitration would be English. The clause provides that the
award of the Arbitrator would be final and binding upon the
parties and that each party would bear its respective costs of the
arbitration.

18.   Learned   Advocate     relied   upon    Clause     21,      titled
“JURISDICTION”. She submitted that the said clause provides that
the agreement would be governed by the laws of the Republic of
India and that, subject to the provisions of Clause 27 and to the
extent permitted under the Arbitration and Conciliation Act, 1996,
the Courts at Kolkata, West Bengal, India would have exclusive



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jurisdiction in all matters relating to or arising out of the
agreement. On the basis of the aforesaid clauses, learned Advocate
submitted that the arbitration agreement contained in the original
tender document, upon which the Applicant relies, was superseded
by the contractual documents issued after the tender process.
According to her, the arbitration clause relied upon by the
Applicant provided for arbitration at Mumbai, whereas the
subsequent General Terms and Conditions specifically provide that
the arbitration shall be held at Kolkata and that the Courts at
Kolkata shall have exclusive jurisdiction. She, therefore, submitted
that the present Application filed before this Court is not
maintainable. According to her, once the subsequent contractual
documents are taken into consideration, the parties had agreed to
Kolkata as the place of arbitration and had agreed to confer
exclusive jurisdiction upon the Courts at Kolkata. The Applicant
cannot therefore invoke the arbitration clause contained in the
earlier tender document and seek appointment of an Arbitrator
from this Court.

19.   Learned Advocate submitted that the Applicant's reliance
upon the email dated 26 April 2023 is misplaced. She submitted
that the Applicant has selectively relied upon the said email to
contend that the contract was concluded between the parties
through email communications. According to the Respondent, a
plain reading of the email dated 26 April 2023 would show that it
merely records discussions and modifications relating to the
Special Conditions of Contract. It does not, according to the
Respondent, constitute the final contractual document between the



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parties. The subsequent Letter of Intent, Purchase Orders, Work
Order and the General Conditions and Special Conditions annexed
thereto constitute the contractual documents governing the
relationship between the parties.

20.   Learned Advocate submitted that the Applicant's case that
the arbitration agreement contained in the tender document
continued to govern the parties cannot be accepted without
examining the subsequent contractual documents. According to
her, the tender document was only part of the tendering process.
After the Applicant was declared successful, the Respondent issued
the Letter of Intent and thereafter the Purchase Orders and Work
Order containing the terms which were to govern the actual
execution of the work. She submitted that the subsequent
contractual documents therefore have to be considered as a whole.
The Applicant cannot rely upon one part of the tender document
while ignoring the subsequent documents which were accepted
and acted upon by the parties. Learned Advocate submitted that
the Applicant has accepted the subsequent Purchase Orders and
Work Order. Those documents contained the General Conditions
and Special Conditions of Contract. The arbitration clause
contained in those General Terms and Conditions provides for
arbitration at Kolkata. Therefore, according to the Respondent,
even if the existence of an arbitration agreement is accepted, the
relevant question is as to which arbitration clause governs the
disputes between the parties. She submitted that the present case
is therefore not a case where the Respondent has denied the
existence of an arbitration agreement altogether. The Respondent's



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case is that the arbitration clause relied upon by the Applicant
from the tender document does not govern the subsequent
contractual   relationship   between   the   parties.   The     parties,
according to the Respondent, acted under the Purchase Orders and
Work Order containing different General Terms and Conditions
and a different arbitration clause.

21.   Learned Advocate therefore submitted that the question of
the applicable arbitration clause cannot be decided merely by
referring to the tender document. The subsequent contractual
documents, the General Terms and Conditions forming part
thereof and the jurisdiction clause contained therein have to be
given due consideration. She submitted that the Applicant's
allegation of suppression is material. According to the Respondent,
the Applicant did not fairly place the subsequent General Terms
and Conditions before the Court while seeking appointment of an
Arbitrator on the basis of Clause 18 of the tender document. The
Respondent has therefore placed reliance upon Clauses 20 and 21
of the subsequent General Terms and Conditions to demonstrate
the actual agreement between the parties.

22.   Learned Advocate submitted that the Court exercising
jurisdiction under Section 11 of the Arbitration and Conciliation
Act, 1996 cannot proceed on the assumption that the arbitration
clause contained in the tender document necessarily continued to
operate after the parties entered into subsequent contractual
arrangements. The Court must first examine whether the
subsequent documents superseded the earlier terms and, in
particular, which arbitration clause was agreed between the



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parties. She submitted that the Applicant's claim for appointment
of a Sole Arbitrator under the arbitration clause contained in the
tender document is therefore misconceived. The subsequent
General Terms and Conditions contain an arbitration agreement
which provides for arbitration at Kolkata. Clause 21 provides for
exclusive jurisdiction of the Courts at Kolkata. On the Respondent's
case, the present Application before this Court is consequently not
maintainable. Learned Advocate submitted that the Respondent's
case is supported by the manner in which the contractual
documents came into existence. The tender was initially issued for
inviting offers. After the Applicant was selected, the Respondent
issued the Letter of Intent dated 2 May 2023. Thereafter, the
Purchase Orders and Work Order were issued together with the
General Conditions and Special Conditions of Contract. It is these
subsequent documents which, according to the Respondent,
governed the actual performance of the work. She therefore
submitted that the Applicant cannot treat the earlier tender
document as the final and binding contract for the purpose of
invoking the arbitration clause contained therein, while at the
same time relying upon the subsequent Purchase Orders for
establishing its contractual rights and monetary claims.

23.   Learned Advocate accordingly submitted that the present
Application deserves to be rejected on the ground that the
arbitration clause relied upon by the Applicant does not govern the
disputes between the parties and that the subsequent arbitration
clause provides for arbitration at Kolkata. In view of Clause 21
conferring exclusive jurisdiction upon the Courts at Kolkata, this



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Court, according to the Respondent, ought not to exercise
jurisdiction under Section 11 of the Arbitration and Conciliation
Act, 1996.

24.   Ms. Parasnis, learned Advocate for the Respondent, placed
reliance upon the judgment of the Supreme Court in Duro
Felguera, S.A. v. Gangavaram Port Limited, reported in (2017) 9
SCC 729. She submitted that, after the amendment to Section 11
of the Arbitration and Conciliation Act, 1996, the Court is required
to examine the existence of an arbitration agreement within the
limited scope of Section 11. The Supreme Court has observed in
paragraph 13 that, after insertion of Section 11(6A), the power of
the Court is confined to examining the existence of an arbitration
agreement. Learned Advocate submitted that, in the present case,
the existence of an arbitration agreement cannot be examined by
referring only to Clause 18 of the earlier tender document.
According to her, the Court has to consider the subsequent
contractual documents relied upon by the Respondent. Her
submission is that the subsequent General Terms and Conditions
contain a separate arbitration clause and that the said clause
governs the relationship between the parties.

25.   Learned Advocate placed reliance upon the judgment of the
Supreme Court in Indus Mobile Distribution Private Limited v.
Datawind Innovations Private Limited, reported in (2017) 7 SCC
678. She submitted that the Supreme Court has held that once the
seat of arbitration is designated, it is akin to an exclusive
jurisdiction clause. The Court observed that, once the seat is
determined, the Courts having jurisdiction over the seat have



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exclusive jurisdiction for regulating the arbitral proceedings.

26.   Learned Advocate relied upon the judgment of the Supreme
Court in Ravi Ranjan Developers Private Limited v. Aditya Kumar
Chatterjee, 2022 SCC OnLine SC 568. She submitted that the
Supreme Court has explained the scope of the jurisdiction of a
High Court under Section 11(6) of the Arbitration and Conciliation
Act, 1996. The Court held that an application under Section 11(6)
cannot be filed before any High Court in India merely because it is
a High Court. The provision has to be read with Section 2(1)(e) of
the Act and the application has to be made before the High Court
having the requisite supervisory jurisdiction over the Court
contemplated under Section 2(1)(e). She submitted that, in Ravi
Ranjan Developers, the Supreme Court considered the argument
based upon Indus Mobile that designation of the seat of arbitration
confers exclusive jurisdiction upon the Courts at the seat. The
Supreme Court clarified that the Court must examine the actual
intention of the parties as disclosed from the arbitration
agreement. It was held, on the facts of that case, that Kolkata was
intended only as the venue for holding the arbitration sittings and
was not the seat of arbitration. Consequently, the Calcutta High
Court was held to lack jurisdiction.

27.   Learned Advocate therefore submitted that the Applicant's
reliance upon the arbitration clause contained in the original
tender document cannot confer jurisdiction upon this Court when
the subsequent contractual documents contain a different
arbitration arrangement. On this basis, she submitted that the
present Application deserves to be dismissed for want of



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jurisdiction.

REASONS AND FINDINGS:

28.   I have considered the submissions made on behalf of both
sides. The first question which has to be seen is whether there is an
arbitration agreement between the parties. On this issue, it is
difficult to accept the case of the Respondent that there was no
arbitration agreement at all. The tender document relied upon by
the Applicant contains a separate Clause 18.7 relating to
arbitration. Clause 18.5 provides for two stages for settlement of
disputes. First is negotiation and thereafter arbitration. Clause
18.7 provides what will happen if the dispute is not settled
through negotiation. The language used in Clause 18.7 is quite
clear. It starts in the following manner:

      “If the efforts to resolve all or any of the disputes, differences
      or controversy through negotiation fail, then such disputes or
      differences or controversy, whatsoever arising between the
      Parties,    arising     out     of    or     relating    to    the
      manufacture/construction, measuring operation or effect of
      the Contract or the breach thereof shall be referred to
      arbitration in accordance with the following provisions:”

29.   Thus, from the tender document, there is an agreement
between the parties to refer the disputes arising from the contract
to arbitration. It provides the manner in which the arbitrator is to
be appointed. There may be a dispute whether this clause
continued to apply after the subsequent documents were issued.
But that is different from saying that the tender document did not
contain any arbitration agreement.




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30.   Another part of Clause 18.7 is important for considering the
objection regarding jurisdiction. Clause 18.7(b) specifically
provides:

      “The arbitration proceedings shall be held in Mumbai.”

31.   These words are quite direct. Mumbai is not mentioned only
as the address or place of either party. It is mentioned with
reference to “the arbitration proceedings”. Therefore, under the
tender document, the parties had provided that the arbitration
proceedings would be held in Mumbai.

32.   The Respondent, however, submits that the Applicant cannot
rely only upon the tender document. According to the Respondent,
the tender was only one part of the tender process. After the
Applicant was selected, contractual documents were issued
between the parties. The Respondent says that those documents
contained different General Terms and Conditions and Clause 20
of those conditions contained another arbitration clause. According
to the Respondent, that clause provides for arbitration at Kolkata.
The Respondent relies upon Clause 21, under which the Courts at
Kolkata     are   given   exclusive    jurisdiction.   Therefore,      the
Respondent's case is not really that there was no arbitration
agreement between the parties. The case of the Respondent is that
the Applicant is relying upon an earlier arbitration clause which is
no longer applicable. According to the Respondent, the arbitration
clause contained in the tender document was replaced by the
contractual documents issued thereafter.




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33.   This submission requires consideration because the question
of jurisdiction depends upon which contractual document governs
the parties. The matter cannot be decided merely because two
arbitration clauses are found in two different documents. It has to
be seen whether the later terms were accepted by both sides as
part of the contract and, if they were accepted, whether those
terms replaced the earlier arbitration clause. In this connection,
the Purchase Order dated 2 May 2023 is an important document.
Under the heading “General Terms & Conditions”, it records:

      “General terms & condition as mutually agreed between
      Jayanta Infratech Limited & RCCPL Private Limited.”
34.   The same Purchase Order records:

      “Detailed Order / Contract along with the Scope of Service,
      Technical specifications including applicable other terms and
      condition as discussed and agreed will be released in due
      course.”
35.   The Purchase Order bears the acceptance of the Applicant.
Therefore, this document does not show that the tender conditions
came to an end on issuance of the Purchase Order. On the contrary,
the Purchase Order shows that the work was being placed on the
basis of the discussions and terms which had taken place between
the parties. It shows that a detailed contract was to be issued later.
The Respondent relies upon the later General Terms and
Conditions, particularly Clause 20. According to the Respondent,
Clause 20 first provides for an attempt to settle the dispute by
mutual discussions and thereafter provides for reference to a sole
arbitrator to be mutually appointed by the parties. Clause 20(c)




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says:

        “The arbitration shall be held at Kolkata”

36.     The Respondent relies upon Clause 21 which provides for
exclusive jurisdiction of the Courts at Kolkata. If these later terms
were executed and accepted by both parties as the final and
complete terms of the contract, then the submission of the
Respondent would have substance. In such a situation, the
Applicant could not rely upon the earlier Mumbai provision while
ignoring the later terms agreed between the parties. The later
agreement would then have to be given effect. But the question
before the Court is not merely what the Respondent says about the
later documents. The question is whether the material placed
before the Court shows that the parties replaced the earlier
arbitration agreement by another arbitration agreement under
which Kolkata was made the seat or legal place of arbitration.

37.     On the material which is before the Court, such replacement
is not shown with sufficient clarity. The Purchase Order does not
state that Clause 18.7 of the tender document was cancelled or
superseded. It does not state that Mumbai was being replaced by
Kolkata. It does not state that all the earlier tender conditions
stood deleted.

38.     The subsequent conduct of the Applicant is relevant. It does
not support the Respondent's case that the tender document had
become irrelevant. In the communication seeking release of the
balance retention amount, the Applicant relied upon the tender
document. It stated that the work had been completed on 28



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February 2024, that EIG sanction for energisation was received on
8 April 2024 and that the OHE was energised on 10 April 2024.
The Applicant relied upon Clause 1.1.29 of the tender document
relating to the twelve months Defects Liability Period and stated
that the DLP therefore expired on 10 April 2025. The EIG
document shows that sanction for energisation was granted in
respect of the concerned railway siding and OHE work at
Mukutban. This is relevant as it shows that the contractual
arrangement was acted upon, and the work was completed. This is
therefore not a case where the tender process ended without any
work being performed. There was actual performance under the
arrangement arising from the tender and the subsequent Purchase
Orders. For this reason, I am unable to accept the Respondent's
submission in its wider form that the tender document lost all
contractual relevance after the Purchase Order was issued. The
later Purchase Order refers to the General Terms and Conditions as
“mutually agreed” and states that a detailed contract was to be
released. The Applicant thereafter relied upon the tender
conditions while claiming its contractual dues. The conduct of the
parties   therefore   shows   that     the   contractual   arrangement
continued, though there remains a dispute regarding the exact
terms which govern the parties.

39.   The Respondent has alleged that the Applicant deliberately
suppressed the later General Terms and Conditions and selectively
relied upon the email dated 26 April 2023. I am unable to accept
the allegation of deliberate suppression in the manner in which it
has been stated. The Respondent has produced the later terms



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before the Court and those documents have been considered. Once
the documents are before the Court, the question has to be decided
from those documents and their legal effect. Merely alleging that
the other party acted wrongly cannot decide which contractual
terms are applicable.

40.   The Respondent has submitted that the email dated 26 April
2023 did not conclude the contract and only recorded discussions
and changes relating to the Special Conditions of Contract. Even if
this submission is accepted for the present purpose, it does not
complete the Respondent's case. Even if the email was not the final
contract, it still has to be seen what terms were incorporated into
the Purchase Order and whether the later terms removed or
replaced Clause 18.7 of the tender document. The Purchase Order
dated 2 May 2023 is therefore important. It bears the acceptance
on behalf of the Applicant and records the General Terms and
Conditions as mutually agreed. At the same time, it states that the
detailed Order or Contract containing the scope, specifications,
and other applicable terms “will be released in due course”.
Therefore, merely from this wording, it would not be proper to
assume that every later document relied upon by the Respondent
automatically became a complete replacement of the earlier
contractual arrangement.

41.   I now come to the judgments relied upon by the Respondent.
In Duro Felguera, the Supreme Court was considering Section
11(6A), as it then existed, and observed that the Court's
consideration was limited to examining the existence of an
arbitration agreement. The Respondent relies upon this principle



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to submit that the Court should not decide all disputes relating to
the contract while considering a Section 11 application. As a
general principle regarding the limited nature of the Section 11
inquiry, this submission has to be kept in view. However, Duro
Felguera does not mean that the Court should ignore the
contractual documents placed before it. The Court has to see
whether an arbitration agreement exists. If the Respondent says
that the arbitration clause relied upon by the Applicant was
replaced by another clause having a different seat, then the Court
has to look at the documents relied upon by the Respondent for
considering that objection. It is necessary to keep in mind that
Duro Felguera was decided when Section 11(6A) was part of the
statute. That provision was later omitted by the 2019 amendment.
Therefore, paragraph 13 of Duro Felguera cannot be treated as the
complete statement of the law applicable to the present case. The
judgment may still be considered for the principle regarding
limited examination at the Section 11 stage, but the law applicable
to the present application has to be kept in view.

42.   The Respondent next relies upon Indus Mobile Distribution
Private Limited. The Supreme Court observed in paragraph 20:

      “the moment the seat is designated, it is akin to an exclusive
      jurisdiction clause.”
43.   The Court held that when Mumbai was the seat, the Mumbai
Courts had exclusive jurisdiction to supervise the arbitration. There
is no difficulty in accepting this principle. Therefore, if the later
contract between these parties had validly fixed Kolkata as the seat
of arbitration, the Courts at Kolkata would have supervisory



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jurisdiction over the arbitration. In that situation, this Court could
not assume jurisdiction merely because some part of the cause of
action arose in Maharashtra. But the principle in Indus Mobile
applies after the Court finds what seat was agreed between the
parties. It does not answer the earlier question in the present case,
namely, whether the parties replaced the Mumbai provision
contained in Clause 18.7 by the later provision relied upon by the
Respondent.

44.   The   judgment    in   Ravi Ranjan Developers helps in
considering this issue. The Supreme Court held that a Section
11(6) application cannot be filed in any High Court in India
merely according to the choice of a party. It has to be filed before
the High Court having the jurisdiction contemplated under the
Arbitration and Conciliation Act. The Court reiterated that where
the seat is designated, the Courts at that seat exercise supervisory
jurisdiction. At the same time, the Supreme Court cautioned that
the words used in an arbitration agreement cannot be read
separately from the facts and the surrounding contractual
arrangement. In paragraph 41, the Court observed:

      “A judgment is a precedent for the issue of law that is raised
      and decided. The judgment has to be construed in the
      backdrop of the facts and circumstances in which the
      judgment has been rendered. Words, phrases and sentences
      in a judgment, cannot be read out of context.”
45.   This observation is relevant in the present case. The
Respondent relies upon the word “Kolkata” appearing in the later
arbitration clause. But before giving effect to that clause, it has to
be seen whether that clause became part of the final agreement


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between the parties and whether the parties intended that it
should replace the earlier Mumbai clause. The facts in Ravi Ranjan
Developers are useful for this purpose. In that case, the agreement
merely stated that the “sitting” of the arbitral tribunal would be at
Kolkata. The Supreme Court found that Kolkata was only the
venue and not the seat because the other terms of the agreement
did not show an intention to give supervisory jurisdiction to the
Calcutta High Court.

46.   In the present case, there is one circumstance relied upon by
the Respondent. According to the Respondent, later Clause 20(c)
says: “The arbitration shall be held at Kolkata” and Clause 21
separately gives exclusive jurisdiction to the Courts at Kolkata. If
these clauses are ultimately found to be the final agreed terms
between the parties, they may together show that Kolkata was
intended to be the legal seat of arbitration and not merely the
place where the hearings were to be held. I therefore cannot
accept the Applicant's submission in an absolute manner that the
words “held at Kolkata” can never mean the seat merely because
the word “venue” has not been used. The agreement has to be read
as a whole. The separate clause giving exclusive jurisdiction to the
Courts at Kolkata is a relevant circumstance. But this does not
decide the matter. The existence of the later Kolkata clauses and
their incorporation into the contract are two different things. The
Respondent has shown that it relies upon those clauses. It has
stated that the subsequent Purchase Orders and General Terms and
Conditions were accepted by the Applicant. However, the material
before the Court does not contain a clear provision stating that



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Clause 18.7 of the tender document, including the Mumbai
provision, was cancelled or superseded. In fact, the Respondent's
own case, as stated in its submissions, is that the arbitration
agreement in the tender “was superseded by subsequent
agreements.” If the earlier agreement was “superseded”, it means
that the earlier arbitration agreement existed and the Respondent
says that a later agreement replaced it. Therefore, it is not enough
merely to show that another arbitration clause exists. The
Respondent has to show the later agreement and its acceptance in
a manner which establishes that the earlier clause was replaced.

47.   On the documents before the Court, I do not find such clear
replacement. The Purchase Order dated 2 May 2023 does not state
that Clause 18.7 of the tender was deleted. It refers to the General
Terms and Conditions as mutually agreed and states that the
detailed contract with the applicable terms was to be released
later. The Applicant thereafter continued to refer to the tender
document for the DLP and for payment of the retention amount.
Therefore, there is sufficient material to hold that the parties had
an arbitration agreement and that the Mumbai provision in Clause
18.7 formed part of the contractual arrangement arising from the
tender. However, there is no sufficient clear material at this stage
to hold that the Applicant knowingly and gave up the Mumbai seat
and accepted Kolkata in its place.

48.   I am conscious that the Respondent disputes this finding and
says that the later General Terms and Conditions were the terms
governing the parties. But that dispute cannot take away the
arbitration   agreement.   Questions   relating   to   incorporation,



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interpretation, supersession, delay, liquidated damages, retention
and the amount payable under the contract cannot all be made
into grounds for refusing appointment of an arbitrator.

49.   In the result, the Applicant has made out the necessary case
for appointment of an Arbitral Tribunal. The disputes between the
parties are required to be decided in arbitration in accordance with
Clause 18.7 of the contractual arrangement. The Respondent may
raise before the learned Arbitrator its objections regarding the
alleged supersession of the tender terms, the later General Terms
and Conditions, delay, liquidated damages, retention, and other
monetary claims, in accordance with law. On the material before
the Court, none of these objections is sufficient to refuse
appointment of the Arbitrator.
50.   In the aforesaid circumstances, the present Application under
Section 11 of the Act, is deserved to be disposed of in terms of the
following order:

      A)   Mr Jash Gandhi, Advocate of this court is hereby
      appointed as the Sole Arbitrator to adjudicate upon the
      disputes and differences arising out of contract in question,
      including claims and counter claims;

      Office Address:- 3rd Office, Brady House Building, 2nd Floor,
      Kala Ghoda, Mumbai – 400 001

      Email: [email protected]

      B)   A copy of this Order will be communicated to the
      Learned Sole Arbitrator by the Advocates for the Applicant




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within a period of one week from today. The Applicant shall
provide the contact and communication particulars of the
parties to the Arbitral Tribunal along with a copy of this
Order;

C)   The Learned Sole Arbitrator is requested to forward the
statutory Statement of Disclosure under Section 11(8) read
with Section 12(1) of the Act to the Advocates for the
Applicant so as to enable them to file the same in the
Registry of this Court. The Registry of this Court shall retain
the said Statement on the file of this Applicant and a copy of
the same shall be furnished by the Advocates for the
Applicant to the Advocates for the Respondent;

D)   The Learned Sole Arbitrator is requested to forward the
statutory Statement of Disclosure under Section 11(8) read
with Section 12(1) of the Act to the parties within a period
of two weeks from receipt of a copy of this Order;

E)   The parties shall appear before the Learned Sole
Arbitrator on such date and at such place as indicated, to
obtain appropriate directions with regard to conduct of the
arbitration including fixing a schedule for pleadings,
examination of witnesses, if any, schedule of hearings etc. At
such meeting, the parties shall provide a valid and functional
email address along with mobile and landline numbers of the
respective Advocates of the parties to the Arbitral Tribunal.
Communications to such email addresses shall constitute
valid service of correspondence in connection with the




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      arbitration;

      F)    All arbitral costs and fees of the Arbitral Tribunal shall
      be borne by the parties equally in the first instance, and shall
      be subject to any final Award that may be passed by the
      Tribunal in relation to costs.

51.   All issues on merits are kept open to be agitated before the
arbitral tribunal appointed hereby.

52.   All actions required to be taken pursuant to this order shall
be taken upon receipt of a downloaded copy as available on this
Court’s website.

                                             (AMIT BORKAR, J.)




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