TMI Blog2021 (4) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... been discharged by a settlement is required to be liberally construed in favour of relegating the parties to arbitration. Unless the Court comes to the conclusion that the dispute raised by the claimant with regard to the validity of the settlement is bereft of any merit; is not bona fide; or is a frivolous one, the Court must relegate the parties to resolve the disputes in arbitration. In case where the Courts finds that the arbitration agreement does not exists, the parties would nonetheless be entitled to agitate the disputes before Civil Courts. In this perspective, once it is established that the parties had entered into an arbitration agreement, the Courts must lean in favour of relegating the parties to that forum. Once it established that the parties had entered into an Arbitration Agreement, the question whether the contract (including the arbitration clause) stood discharged by accord and satisfaction must be considered with the perspective whether the same is established without any detailed adjudicatory exercise. Thus, unless the Courts concludes that the said disputes are ex facie unmerited and frivolous, the parties must have their say before the agreed forum. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nam (hereafter the 'Contract Agreement'). 4. In terms of the Contract Agreement, SPML had furnished Performance Bank Guarantees and Advance Bank Guarantee of a total amount of ₹ 14,96,89,136/- to secure NTPC. The details of the said Bank Guarantees are set out as below: Nature of BG Bank Guarantee No. Opening Date of BG Bank Guarantee Amount Final Validity Period Advance 0040ILG002609 11.08.2009 ₹1,91,99,725 19.05.2019 PBG 0040ILG0009 01.07.2009 ₹2,26,31,532 18.06.2019 PBG 0040ILG001209 01.07.2009 ₹8,23,63,368 18.06.2019 Advance 0040ILG001309 01.07.2009 ₹2,54,94,501 18.06.2019 5. The Performance and Advance Bank Guarantees as set out above are hereafter referred to as the Bank Guarantees. 6. SPML claims th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D. Wrongful deduction ₹ 15,12,340 TOTAL ₹ 72,01,53,898/- 9. No response was received from NTPC to the letter dated 15.05.2019. Accordingly, on 12.06.2019, SPML issued a notice calling upon NTPC to appoint an Adjudicator within thirty days in terms of the Dispute Resolution Clause as mandated under Clause 6 of the General Conditions of the Contract (GCC) read with Clause 3 of the Special Conditions of the Contract (SCC). 10. Aggrieved by the fact that the Bank Guarantees were not yet released despite repeated assurances given by NTPC, SPML filed a Writ Petition being W.P. (C) No. 7213 of 2019 captioned M/S. SPML Infra Ltd. vs. NTPC Ltd. and by an order dated 08.07.2019 passed in that petition, this court stayed the encashment of the Bank Guarantees subject to SPML keeping the same alive. 11. On 23.07.2019, SPML issued a notice under Clause 6.2.1 of the GCC to commence arbitration as NTPC had failed to meet its claims as set out in its notice dated 12.06.2019. SPML nominated Justice (Retd.) Dr Satish Chandra, a former judge of the High Court of Indore, to adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice subject to release of the Bank Guarantees by NTPC by 20.01.2020. SPML claims that during the pendency of the Writ Petition before this court, NTPC proposed a Settlement Agreement to SPML and took a position that the Bank Guarantees would not be released until SPML signs the Settlement Agreement. The Settlement Agreement was signed on 22.05.2020 and in pursuance of the same, NTPC released the Bank Guarantees although the same had expired earlier. The same was acknowledged by SPML in its letter dated 22.07.2020. 16. Consequently, the aforesaid Writ Petition filed by SPML before this Court was also withdrawn on 21.09.2020. 17. SPML in its letter dated 22.07.2020, stated that it was compelled to sign the Settlement Agreement under duress and without free consent. SPML further repudiated the said Agreement. SPML further requested NTPC to accept its claims as set out in the letter dated 15.05.2019. 18. NTPC responded to the said letter dated 22.07.2020 disputing SPML's claim of ₹ 72,01,53,899/-. Submissions 19. Mr. Raman Kapoor, learned Senior Counsel appearing for the petitioner contended that there is no dispute as to the existence of the Arbitration A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Tribunal which would decide any preliminary issues including the validity, the efficacy and the effect of the Settlement Agreement. 22. Mr. Aman Lekhi, learned ASG appearing for NTPC contended that the present petition is premature as the petitioner has failed to take the mandatory pre-arbitral steps. He submitted that in terms of Clause 6 of the GCC of the Contract Agreement the parties must, reach an amicable settlement by mutual consultation and incase, the same is not possible, then the disputes are to be referred to an adjudicator and, the decision of the adjudicator becomes final if neither party invoke the arbitration clause within fifty-six days from the date of passing of the award. He stated that NTPC on several occasions had communicated to SPML to amicably resolve the disputes and had also advised to refer the dispute to the ESC wherein, an adjudicator would have been appointed for resolution of the disputes. However, SPML chose not to refer the disputes to the adjudicator rather, to execute a Settlement Agreement instead. He submitted that the arbitration clause must be construed strictly and it is essential for the parties to observe all pre-arbitral steps prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponent part of the agreement, falls with it. He relied upon the decisions of the Supreme Court in The Union of India v. Kishorilal Gupta and Bros. AIR 1959 SC 1362, Damodar Valley Corpn. Vs. KK KAR: (1974)1 SCC 141 and Young Achievers v. IMS Learning Resources Pvt. Ltd.: (2013) 10 SCC 535 as well as a Division Bench judgment of this Court in Samyak Projects (P) Ltd. v. Ansal Housing Construction Ltd.: FAO (OS) No. 33 of 2019, decided on 13.02.2019, in support of his contention. Reasons and Conclusion 25. The principal controversy that requires to be addressed by this Court relates to the scope of examination under Section 11 of the A C Act at a pre-referral stage. According to NTPC, the Settlement Agreement entered into by the parties novated the Contract Agreement. With the said novation, the Arbitration Clause contained in the Contract Agreement perished and since the Settlement Agreement does not include an Arbitration Clause, the parties cannot be referred to arbitration. According to NTPC, the Arbitration Agreement as embodied in the Arbitration Clause under the Contract Agreement has ceased to exist. The said contention is disputed by SPML. According to SPML, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason an arbitrator is unable to perform its function, the mandate of the Arbitrator shall terminate in accordance with the provisions of applicable laws as mentioned in GCC Clause 5 (Governing Laws) and a substitute shall be appointed in the same manner as the original arbitrator. 6.2.7 Arbitration proceedings shall be conducted (i) in accordance with the rules of procedure designated in the SCC, (ii) in the place designated in the SCC, and (iii) in the language in which this Contract has been executed. 6.2.8 The decision of a majority of the arbitrators (or of the third arbitrator chairing the arbitration, if there is no such majority) shall be final and binding and shall be enforceable in any court of competent jurisdiction as decree of the court. The parties thereby waive any objections to or claims of immunity from such enforcement. 6.2.9 The arbitrator(s) shall give reasoned award. 27. Mr. Lekhi, learned ASJ had relied on the decision of the Supreme Court in The Union of India v. Kishorilal Gupta and Bros. (supra) and contended that the present case was not one of discharge of the Contract Agreement by accord and satisfaction simpliciter, but by novation in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) the contract may be non est in the sense that it never came legally into existence or it was void ab initio; (4) though the contract was validly executed, the parties may put an end to it as if it had never existed and substitute a new contract for it solely governing their rights and liabilities thereunder; (5) in the former case, if the original contract has no legal existence, the arbitration clause also cannot operate, for along with the original contract, it is also void; in the latter case, as the original contract is extinguished by the substituted one, the arbitration clause of the original contract perishes with it; and (6) between the two falls many categories of disputes in connection with a contract, such as the question of repudiation, frustration, breach etc. In those cases it is the performance of the contract that has come to an end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes. 32. Sarkar J, entered a dissenting opinion. He emphasized that the Arbitration Clause in a contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the event a contract is novated by the parties entering into another contract, the rights and obligations of the parties would be covered by the new contract and not the one that has been novated. However, the present case is not one where the Settlement Agreement has substituted the Contract Agreement. It is essentially to record the agreement between the parties to settle their differences and disputes that have arisen in relation to performance and discharge of the Contract Agreement. Therefore, this Court has to examine the controversy arising in the present petition in the context of the dispute whether SPML had been compelled to enter into the Settlement Agreement by economic coercion and undue influence. The question whether there has been a valid novation of the Contract Agreement is itself a subject of dispute. The principal question before this court at this stage is whether the said dispute is required to be examined by the Arbitral Tribunal or by this Court. 34. In ONGC Mangalore Petrochemicals Limited v. ANS Constructions Limited and Anr.: (2018) 3 SCC 373, the Supreme Court allowed an appeal against the decision of the High Court exercising powers under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l discharge of its claims alleging that it had signed the full and final settlement discharge voucher by fraud, coercion and undue influence exercised by the Insurer. It claimed that it was forced to sign on the dotted lines. The Court found that the said averments were not substantiated and the party who alleges fraud and coercion is under obligation to prima facie establish the same by placing satisfactory material on record before the Chief Justice or his designate to exercise powers under Section 11(6) of the Act . The Court held that unless the claimant who alleges that execution of the discharge agreement or no claim certificate was obtained on account of fraud/coercion/undue influence practiced by the other party is liable to produce prima facie evidence to substantiate the same, the correctness thereof may be open for the Chief Justice to look into this aspect to find out where the dispute is bona fide and genuine in taking a decision under Section 11(6) of the Act . The Court concluded as under: 21. In the instant case, prima facie no dispute subsisted after the discharge voucher being signed by the respondent without any demur or protest and claim being finally sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any court, confine to the examination of the existence of an arbitration agreement. (emphasis supplied) From a reading of Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should and need only look into one aspect--the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is the next question. The resolution to that is simple--it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement.***59. The scope of the power under Section 11of the 1996 Act was considerably wide in view of the decisions in SBP Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 and National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267: (2009) 1 SCC (Civ) 117. This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists--no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request being a party to that agreement and the subsistence of an arbitrable dispute require to be decided and the decision on these aspects is a prelude to the Chief Justice considering whether the requirements of sub-section (4), sub-section (5) or sub-section (6) of Section 11 are satisfied when approached with the request for appointment of an arbitrator. It is difficult to understand the finality referred to in Section 11(7) as excluding the decision on his competence and the locus standi of the party which seeks to invoke his jurisdiction to appoint an arbitrator. Viewed from that angle, the decision on all these aspects rendered by the Chief Justice would attain finality and it is obvious that the decision on these aspects could be taken only after notice to the parties and after hearing them. 39. It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Law Commission felt that the judgments in SBP Co. [SBP Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] required a relook, as a result of which, so far as Section 11 is concerned, the Supreme Court or, as the case may be, the High Court, while considering any application under Sections 11(4) to 11(6) is to confine itself to the examination of the existence of an arbitration agreement and leave all other preliminary issues to be decided by the arbitrator. 41. At this stage, it would also be relevant to refer to the decision of the Supreme Court in National Insurance Company Limited v. Boghara Polyfab Private Limited (2009) 1 SCC 267. In that case, the Supreme Court had, inter alia, considered the import of doctrine of Competence-Competence, which finds statutory expression in Section 16 of the A C Act, in the context of issues that arise at a pre-referral stage. The Supreme Court had identified and classified the preliminary issues that may arise at the pre-referral stage, into three categories. The first category of cases comprised of issues that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we would respectfully adopt the three categories in Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] The first category of issues, namely, whether the party has approached the appropriate High Court, whether there is an arbitration agreement and whether the party who has applied for reference is party to such agreement would be subject to more thorough examination in comparison to the second and third categories/issues which are presumptively, save in exceptional cases, for the arbitrator to decide. In the first category, we would add and include the question or issue relating to whether the cause of action relates to action in personam or rem; whether the subject-matter of the dispute affects third-party rights, have erga omnes effect, requires centralised adjudication; whether the subject-matter relates to inalienable sovereign and public interest functions of the State; and whether the subject-matter of dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s). Such questions arise rarely and, when they arise, are on most occasions questions of law. On the other hand, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C (Civ) 117]. This position continued till the amendment brought about in 2015. After the amendment, all that the courts need to see is whether an arbitration agreement exists--nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11(6-A) ought to be respected. 45. However, as noticed above, in Vidya Drolia and Ors. (supra), the Supreme Court had adopted the categories of issues referred to in Boghara Polyfab Private Limited (supra). A careful reading of paragraph 138 of the decision in the case of Vidya Drolia (supra) indicates that the Supreme Court had also clearly held that issues relating to contract formation, existence, validity and non-arbitrability would be connected and intertwined with the issues underlying the merits of the respective disputes/claims would be left to arbitration. Thus, clearly all issues relating to existence of an Arbitration Agreement are not required to be decided by the Court while examining the questions as to the existence of the Arbitration Agreement. 46. It would also be relevant to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finally determined by the Arbitral Tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void. In the event that the judicial authority refers the dispute to arbitration and/or appoints an arbitrator, under Sections 8 and 11 respectively, such a decision will be final and non-appealable. An appeal can be maintained under Section 37 only in the event of refusal to refer parties to arbitration, or refusal to appoint an arbitrator.' 49. The statement of objects and reasons appended to the Arbitration and Conciliation (Amendment) Bill, 2015, inter alia, explicitly state that the enactment is (vi) to provide that while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues . (emphasis supplied) 50. It clearly follows from the above that this Court is not required at this stage to give a conclusive finding as to the existence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood and substantial reasons to the contrary. 134. Prima facie examination is not full review but a primary first review to weed out manifestly and ex facie non-existent and invalid arbitration agreements and non-arbitrable disputes. The prima facie review at the reference stage is to cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage. Only when the court is certain that no valid arbitration agreement exists or the disputes/subject-matter are not arbitrable, the application under Section 8 would be rejected. At this stage, the court should not get lost in thickets and decide debatable questions of facts. Referral proceedings are preliminary and summary and not a mini trial. This necessarily reflects on the nature of the jurisdiction exercised by the court and in this context, the observations of B.N. Srikrishna, J. of plainly arguable case in Shin-Etsu Chemical Co. Ltd. [Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC 234] are of importance and relevance. Similar views are expressed by this Court in Vimal Kishor Shah [Vimal K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it helps in quicker and efficient resolution of disputes. * * 147. We would proceed to elaborate and give further reasons: 147.1. In Garware Wall Ropes Ltd. [Garware Wall Ropes Ltd. v. Coastal Marine Constructions Engg. Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civ) 324], this Court had examined the question of stamp duty in an underlying contract with an arbitration clause and in the context had drawn a distinction between the first and second part of Section 7(2) of the Arbitration Act, albeit the observations made and quoted above with reference to existence and validity of the arbitration agreement being apposite and extremely important, we would repeat the same by reproducing para 29 thereof : (SCC p. 238) 29. This judgment in Hyundai Engg. case [United India Insurance Co. Ltd. v. Hyundai Engg. Construction Co. Ltd., (2018) 17 SCC 607 : (2019) 2 SCC (Civ) 530] is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did exist , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gg. Ltd., (2005) 8 SCC 618] The object and purpose behind the two provisions is identical to compel and force parties to abide by their contractual understanding. This being so, the two provisions should be read as laying down similar standard and not as laying down different and separate parameters. Section 11 does not prescribe any standard of judicial review by the court for determining whether an arbitration agreement is in existence. Section 8 states that the judicial review at the stage of reference is prima facie and not final. Prima facie standard equally applies when the power of judicial review is exercised by the court under Section 11 of the Arbitration Act. Therefore, we can read the mandate of valid arbitration agreement in Section 8 into mandate of Section 11, that is, existence of an arbitration agreement . 147.6. Exercise of power of prima facie judicial review of existence as including validity is justified as a court is the first forum that examines and decides the request for the referral. Absolute hands off approach would be counterproductive and harm arbitration, as an alternative dispute resolution mechanism. Limited, yet effective intervention is accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Datt Builders Ltd., (2009) 7 SCC 696 : (2009) 3 SCC (Civ) 271] to observe that the analysis in the said case supports the final conclusion that the memorandum of understanding in the said case did not incorporate an arbitration clause. Thereafter, reference was specifically made to Patel Engg. Ltd. [SBP Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and Boghara Polyfab (P) Ltd. [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] to observe that the legislative policy is essential to minimise court's interference at the pre-arbitral stage and this was the intention of sub-section (6) to Section 11 of the Arbitration Act. Para 48 in Duro Felguera [Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017) 4 SCC (Civ) 764] specifically states that the resolution has to exist in the arbitration agreement, and it is for the court to see if the agreement contains a clause which provides for arbitration of disputes which have arisen between the parties. Para 59 is more restrictive and requires the court to see whether an arbitration agreement exists--nothing more, nothing less. Read with the other findings, it would be approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said agreement would supersede any or all prior agreements, understandings and arrangements. Dispute arose between the parties regarding transfer of certain shares of ANI. The Petitioner contested the same as being violative of the Companies Act, 2013, as well as the MoU and accordingly, filed a petition under Section 11 of the A C Act for appointment of an arbitrator in accordance with the arbitration clause contained in the MoU. The Delhi High Court held that the SHA being a comprehensive agreement between all the shareholders had novated the MOU and thus, the arbitration clause had perished with it. The said decision was carried in appeal before the Supreme Court. The respondents contended that the MoU was superseded after its clauses were incorporated in the Articles of Association of ANI. They relied on the decisions of the Supreme Court in Kishorilal Gupta (supra), Damodar Valley Corporation (supra); and Young Achievers (supra) amongst other decisions. The Supreme Court noted the above and also referred to the relevant passages from the decision in Vidya Drolia (supra) as referred in the recent decisions in Pravin Electricals Pvt. Ltd. Vs. Galaxy Infra and Engineerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heme contained in Section 16 read with Section 11(6A) of the 1996 Act. 53. At this stage, it would be relevant to refer to the decision in the case of Oriental Insurance Company Limited and Anr. v. Dicitex Furnishing Limited (2020) 4 SCC 621. The said decision was rendered in the context of the unamended provisions of Section 11 of the A C Act. Concededly, the extent of inquiry under Section 11 prior to the introduction of sub-section (6A) was wider. In the aforesaid case, the respondent had contended that it was coerced into executing a discharge voucher as dictated by the appellant as it was in urgent need to meet its mounting liabilities. The Bombay High Court found the said dispute to be genuine and had referred the parties to arbitration. The Supreme Court had while dismissing the appeal held as under: 26. An overall reading of Dicitex's application [under Section 11(6)] clearly shows that its grievance with respect to the involuntary nature of the discharge voucher was articulated. It cannot be disputed that several letters -- spanning over two years--stating that it was facing financial crisis on account of the delay in settling the claim, were addressed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reft of any merit; is not bona fide; or is a frivolous one, the Court must relegate the parties to resolve the disputes in arbitration. 55. It is also relevant to bear in mind that the decision whether to refer the parties to arbitration is concerned with only the forum where the disputes are required to be agitated. In case where the Courts finds that the arbitration agreement does not exists, the parties would nonetheless be entitled to agitate the disputes before Civil Courts. In this perspective, once it is established that the parties had entered into an arbitration agreement, the Courts must lean in favour of relegating the parties to that forum. Once it established that the parties had entered into an Arbitration Agreement, the question whether the contract (including the arbitration clause) stood discharged by accord and satisfaction must be considered with the perspective whether the same is established without any detailed adjudicatory exercise. Thus, unless the Courts concludes that the said disputes are ex facie unmerited and frivolous, the parties must have their say before the agreed forum. 56. Bearing the aforesaid principles in mind, the Court may briefly exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 15,12,340/-. It was NTPC's stand that the contract closure process had been concluded and the only pending issue was release of the Bank Guarantees, and therefore, no further payments could be made. This was not agreeable to SPML. 60. On 13.11.2019, SPML sent a letter, the contents of which are reproduced below:- Dear Sir, With reference to the discussion with our Contracts Head Mr. S. Bhattacharya on 08.11.2019 and also subsequent Minutes drawn on the same day. We understand that unless and until the Notice of Arbitration is withdrawn NTPC will not release the following bank guarantees: Nature of BG BG No. Name of the Bank Opening Date of BG BG Amount (Rs.) ADVANCE C040ILG002609 Punjab National Bank l-Aug-09 19,199,725 ADVANCE 0040ILG001309 Punjab National Bank 0l-Jul-09 25,494,501 PBG 0040ILGO0I109 Punjab National Bank 0l-Jul-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rator in the matter to have the disputes and claims adjudicated by way of arbitration as envisaged in the contract. The details address and contracts have already been shared in the mentioned letter and we are now requesting you to nominate a person as your nominee Learned Arbitrator as a step towards the formation of the three member Learned Arbitral Tribunal for adjudication of the disputes arising out of the subject contract as per the terms and conditions of the contract. This is without prejudice to our other rights and contentions under the contract. Thanking you, For SPML Infra Ltd. 63. SPML followed the aforesaid communication by another letter dated 05.12.2019 once again requesting NTPC to nominate its Arbitrator so that an Arbitral Tribunal could be constituted. This request was once again reiterated by SPML by its letter dated 20.12.2019. 64. On 21.12.2019, SPML sent a letter, the contents of which are set out below:- Dear Sir, In furtherance of the aforementioned letters, meetings and the telephonic conversation held on 21.12.2019, between Mr. B. Venkateshwarlu Addl. General Manager of NTPC and our Mr. S. Bhattacharya Contracts Head SPML Infra Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsuccessful in doing so, they were to refer it to an Adjudicator. And, if the disputes still remained unresolved, the same could be referred to arbitration. 68. By a letter dated 15.05.2019, SPML had called upon NTPC to pay an amount of ₹ 72,01,53,898/- against its claims within the period of fifteen days. Since the said demand was not met, SPML had by its letter dated 12.06.2019 requested the Chairman cum Managing Director of NTPC to appoint an adjudicator within thirty days in terms of Clause 6.1.3 of GCC. It is SPML's case that since an adjudicator was not appointed, SPML invoked the Arbitration Clause and by its letter dated 23.07.2019, it nominated its arbitrator and called upon NTPC to nominate an arbitrator so that an Arbitral Tribunal could be constituted. 69. NTPC responded to the said letter on 29.08.2019 suggesting that the parties could sit across the table and sort out the disputes amicably or in the alternative, refer the same to Experts Settlement Council. However, NTPC did not appoint an arbitrator. NTPC suggested that the parties should resolve their disputes amicably and pursuant thereto, certain discussions were held. 70. Clearly, in these cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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