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2020 (10) TMI 1371 - HC - Indian LawsInvocation of bank guarantee that had been furnished by the petitioner as security deposit - requirement to fulfill certain preconditions before invoking the arbitration - HELD THAT:- There is a clear indication therein that the terms of the Concessionaire Agreement are to be accorded priority over all other agreements and documents that formed part of the Concessionaire Agreement. The recital 'F' of the Concessionaire Agreement, no doubt, indicates that the RFQ, RFP and LOIA would all form integral parts of the Concessionaire Agreement. The point to be noted, however, is that in the event of ambiguities and discrepancies arising between clauses in the Concessionaire Agreement and clauses in the RFP, as in this case, it is the clause in the Concessionaire Agreement that has to prevail. No doubt, it is only in the event of a 'conflict' that the relevant clause in the Concessionaire Agreement would prevail over the corresponding clause in the RFP. On an overall perusal of the clauses in the RFP as also in the Concessionaire Agreement, I find that the clauses in the Concessionaire Agreement which deal with the same subject matter as the corresponding clause in the RFP were intended to override the latter clauses in the RFP. The contention of the learned senior counsel for the respondent cannot be accepted that it is only in the event of a challenge to clause 5.15 of the RFP on the ground that it is violative of the fundamental rights of the petitioner under Article 14 of the Constitution of India, that this Court can hold the said clause, in the RFP, as illegal. After the amendment of the 1996 Act in 2015, the law must be taken to be that any clause in an agreement, that requires one of the contracting parties to make a deposit of amount as a precondition for invoking the arbitration, has to be seen as rendering the entire clause arbitrary, being not only excessive or disproportionate but leading to a wholly unjust situation in arbitration proceedings, that are ordinarily to be encouraged on account of the high pendency of cases in courts and the ever-increasing cost of litigation - it is opined that even if the clause in the RFP is to be treated as supplementing Article 22 of the Concessionaire Agreement, the offending conditions in the RFP would have to be ignored in view of the declaration of law by the Supreme Court. Article 22 of the Concessionaire Agreement constitutes the arbitration agreement between the parties, discretion required under Section 11 of the 1996 Act, and appointment of a sole arbitrator is made - Justice (Retd.) Sri. T.R. Ramachandran Nair, a former Judge of this Court is nominated as the sole arbitrator to arbitrate on the disputes that have arisen between the parties herein. This Arbitration Request is allowed.
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