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2022 (7) TMI 974
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....ian Oil Corporation Limited has preferred the present appeals. 3. For the sake of convenience, Civil Appeal arising out of Special Leave Petition No.13161/2019 arising out of the order passed by the High Court in Arbitration Petition No.115/2018 is treated as the lead matter. 4. The facts leading to the present appeal in a nutshell are as under: 4.1. That, the appellant, Indian Oil Corporation Limited (hereinafter referred to as "IOCL") floated a tender in respect of the works described as "Civil, Structural & Associated UG piping works of VGOHDT, DHDT & HCDS Units (EPCM2) for Paradip Refinery Project". The respondent herein - NCC Ltd. (hereinafter referred to as "NCCL") was declared the successful bidder. After issuance of the Letter of Acceptance dated 17.03.2010, a formal agreement was executed between the parties dated 28.04.2010. The relevant clauses of the Agreement which may have a bearing on the issues involved in the present appeals are as under: "1.21.0.0 "Notified Claim" shall mean a claim of the CONTRACTOR notified in accordance with the provisions of Clause 6.6.1.0 hereof. xxx xxx xxx CLAIMS BY THE CONTRACTOR 6.6.1.0 Should the CONTRACTOR consider that he....
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....sed, and the amount claimed and shall be supported by a copy(ies) of the notice(s) sent in respect thereof by the CONTRACTOR to the EngineerinCharge and Site Engineer under Clause 6.6.1.0 hereof. In so far as such claim shall in any manner or particular be at variance with the claim notified by the CONTRACTOR within the provision of Clause 6.6.1.0 hereof, it shall be deemed to be a claim different from the notified claim with consequence in respect thereof indicated in Clause 6.6.1.0 hereof, and with consequences in respect of the notified claim as indicated in Clause 6.6.3.1 hereof. 6.6.3.1 The OWNER shall not anywise be liable in respect of any notified claim not specifically reflected in the Final Bill in accordance with the provisions of Clause 6.6.3.0 hereof and any and all notified claims not specifically reflected and included in the Final Bill in accordance with the provisions of Clause 6.6.3.0 hereof shall be deemed to have been waived by the CONTRACTOR. Further the OWNER shall have no liability in respect thereof and the CONTRACTOR shall not be entitled to raise or include in the Final Bill any claim(s) other than a notified claim conforming in all respects and in acco....
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....in full and final satisfaction of all such dues to the CONTRACTOR notwithstanding any qualifying remarks, protest or condition imposed or purported to be imposed by the CONTRACTOR relative to the acceptance of such payment, with the intent that upon acceptance by the CONTRACTOR of any payment made as aforesaid, the Contract (including the arbitration clause) shall, subject to the provisions of Clause 6.8.2.0 hereof, stand discharged and extinguished except in respect of the notified claims of the CONTRACTOR included in the Final Bill and except in respect of the CONTRACTOR's entitlement to receive the unadjusted portion of the Security Deposit in accordance with the provisions of Clause 6.8.3.0 hereof on successful completion of the defect liability period. 6.7.2.0 The acceptance by the CONTRACTOR of any amount paid by the OWNER to the CONTRACTOR in respect of the notified claims of the CONTRACTOR included in the Final Bill in accordance with the provisions of Clause 6.6.3.0 hereof and associated provisions thereunder, upon the condition that such payment is being made in full and final settlement of all the claims of the CONTRACTOR shall, subject to the provisions of Clause....
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....or difference(s) with respect to or concerning or relating to any of the following matters are hereby specifically excluded from the scope, purview and ambit of this Arbitration Agreement with the intention that any dispute or difference with respect to any of the said following matters and/or relating to the Arbitrator's or Arbitral Tribunal's jurisdiction with respect thereto shall not and cannot form the subjectmatter of any reference or submission to arbitration, and the Arbitrator or the Arbitral Tribunal shall have no jurisdiction to entertain the same or to render any decision with respect thereto, and such matter shall be decided by the General Manager prior to the Arbitrator proceeding with or proceeding further with the reference. The said excluded matters are: (i) With respect to or concerning the scope or existence or otherwise of the Arbitration Agreement; (ii) Whether or not a Claim sought to be referred to arbitration by the CONTRACTOR is a Notified Claim; (iii) Whether or not a Notified Claim is included in the CONTRACTOR's Final Bill in accordance with the provisions of Clause 6.6.3.0 hereof. (iv) Whether or not the CONTRACTOR has opted for ....
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....e NCCL. It appears that thereafter, TKIS in its communication dated 13.01.2017, informed NCCL that it had approved EOT for the period between 03.10.2011 to 03.11.2015, however, without price discount as per Clause 4.4.0.0 of the General Conditions of Contract (hereinafter referred to as "GCC") and that for the period falling between 04.11.2015 to 28.12.2015 which covered the period of 55 days, it had concluded that the delay was attributable to NCCL. Accordingly, TKIS conveyed to NCCL that for the later period, as per Clause 4.4.2.0 of the GCC, a price adjustment discount of 4% would be applicable. 4.4. It is the case on behalf of NCCL that being aggrieved, it wrote to the IOCL on 23.01.2017 to reconsider its decision and accord EOT upto the date of completion i.e. 28.12.2015 without making any adjustment towards price as indicated in the communication dated 13.01.2017. 4.5. That, thereafter, the IOCL released a sum of Rs.4,53,04,021/, the amount calculated as per the communication dated 13.01.2017, after making due adjustments towards taxes etc. 4.6. It appears that subsequently and after a period of 6&1/2 months (after the settlement of the claim) and after receiving the final....
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....vil Appeal Nos.342/2022 to 345/2022), the General Manager declared that none of the claims were Notified Claims. 6. Thereafter the NCCL approached the High Court by way of Arbitration Petition Nos.115/2018, 356/2018, 116/2018, 407/2018 and 406/2018. By the impugned judgment and orders, the High Court has allowed all the respective applications under Section 11(6) of the Arbitration Act and by different impugned judgment and orders, has appointed the sole Arbitrator. Impugned judgment and orders passed by the High Court is the subject matter of Civil Appeal Nos.341/2022 to 345/2022. 7. Shri K.K. Venugopal, learned Attorney General has appeared on behalf of the appellant - IOCL and Shri Ranjith Kumar, learned Senior Advocate has appeared on behalf of the respondent - NCCL. 8. Shri K.K. Venugopal, learned Attorney General appearing on behalf of the IOCL has vehemently submitted that in the present case both the parties are governed by the terms of the contract entered into between the parties viz. the GCC. That in fact, both the parties are governed by the procedure to be followed in case of dispute between the parties, more particularly contained in the GCC and the arbitration cla....
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....e satisfied and the procedure is followed and only with respect to the restricted arbitration clauses and with respect to the Notified Claims only the dispute between the parties can be referred to the arbitration. 8.4 It is submitted that there are umpteen number of examples of restricted arbitration clauses. Reliance is placed on the decision of this Court in the case of United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd. reported in (2018)17 SCC 607, where the arbitration clause expressly stated that where a claim is made against the insurer and the insurer denies its liability, no reference to arbitration can take place. In support of the above submission, reliance is placed on following decisions of this Court: (1) Vidya Drolia v. Durga Trading Corpn. [(2021)2 SCC 1, Paras 113116) (2) Garware Wall Ropes Ltd. vs. Coastal Marine Constructions & Engg. [(2019) 9 SCC 209, Paras 2829) (3) Oriental Insurance Co. Ltd. v. Narbheram Power & Steel (P) Ltd. [(2018) 6 SCC 534, Paras 10, 23] 8.5 It is submitted by the learned Attorney General that in the aforesaid decisions, this Court had occasion to consider the applicability of Section 11(6A) and its impac....
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....tes other than Notified Claims included in the final bill, have to be pursued by way of a suit. The expression, "Notified Claim" is defined in Clause 1.21.0.0 of the GCC. 8.10 It is urged that only those Notified Claims which are notified in accordance with provisions of Clause 6.6.1.0, can be referred to arbitration. 8.11 It is submitted that the parties are at liberty to provide within the contract a departmental machinery for resolution of certain matters, the determination of which will be outside the scope of arbitration. That such departmental machinery, being the will of the parties as embodied in the contract, must be respected and given effect to. In support of the above submissions, reliance is placed on the following decisions of this Court: (i) Food Corporation of India v. Sreekanth Transport (1999)4 SCC 491 (Paras 2, 3) (ii) Harsha Constructions v. Union of India (2014) 9 SCC 246 (Paras 14, 18, 19) (iii) Mitra Guha Builders (India) Company v. Oil and Natural Gas Corporation Ltd. (2020) 3 SCC 222 (Paras 23, 24, 26, 30) 8.12 The learned Attorney General has also relied upon the following decisions of the Delhi High Court and Gauhati High Courts dealing with i....
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....not more be the subject matter of any reference to arbitration. It is submitted that as a result of the acceptance by the NCCL of the amount paid pursuant to its final bill, and the Notified Claims having been withdrawn, and the result of Clauses 6.7.1.0 and 6.7.2.0, the contract, including the arbitration clause stands discharged and extinguished and therefore, subsequently, no reference to arbitration could be made. 8.16 It is submitted that it is only 6½ months later, on 16.05.2017 and after receiving the final bill payment 8 days earlier on 08.05.2017, that the NCCL reneged on its letter withdrawing its demand in regard to Notified Claims. It is submitted that the reason why the NCCL withdrew their demand for payment of the full amount of final bill including Notified Claims is that if 10% has been deducted due to the delay, an amount of Rs.14.8 Crores would have been deducted from the payment of NCCL. It is submitted that having received Rs.151 Crores against the contract of Rs.148 Crores, the NCCL was well aware that in such an eventuality, it would have received no amount against the final bill and its bank guarantee would also have been invoked. That in fact by wit....
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....eciding the dispute in present appeals. (1) That, the parties herein had entered into an agreement, whereby the respondent NCCL was tasked with the job of completing the civil, structural and associated UG Piping works for the Paradip Refinery; (2) Due to certain reasons attributable to IOCL, there was a delay in completion of the works; (3) In accordance with the GCC, NCCL on 23.05.2016, applied for extension of time and submitted its final bill on 05.08.2016; (4) On 29.07.2016, NCCL issued the No Due Certificate, however, it also made it clear that the said Certificate would not include final bill amount, service tax amount and the Notified Claims due from IOCL; (5) The Engineer in charge vide letter dated 01.01.2016, expressly acknowledged the presence of "Notified Claims" in the final bill and coerced NCCL to take back its Notified Claims in order to process its application for EOT; (6) Under duress, NCCL was constrained to issue a letter on 02.11.2016 withdrawing its Notified Claims on the twin condition that the application for EOT is considered favorably and the price discount does not exceed 4% of the contract value; (7) That, the letter dated 02.11.2016....
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....itration clause. (16) It is submitted that the General Manager's decision which is relevant in SLP Nos.13161 and 13183 of 2019 was based on the ground that there was full and final settlement between the parties. It is submitted that as the decision of the General Manager on "Notified Claims" was erroneous, malafide and on technical grounds, NCCL rightly approached the High Court of Delhi under Section 11(6) of the Arbitration Act seeking the relief of appointment of Arbitrator. It is submitted that therefore the High Court is absolutely justified in appointing the Arbitrator. 9.2 Shri Ranjith Kumar, learned Senior Advocate appearing for NCCL has supported the impugned orders passed by the High Court by making the following broad submissions: (1) As per the agreement entered into between the parties, the General Manager is not permitted to decide if a claim is barred by virtue of there being accord and satisfaction or a claim being an excepted claim. (2) Under Section 11(6A) of the Arbitration Act, at the stage of appointment of an arbitrator, the scope of intervention by the Courts is confined to the examination of the existence of an arbitration agreement. (3) At the....
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....t has never been disputed by the IOCL or its General Manager. It is submitted that even the second condition is also fulfilled as the respondent's final bill includes its Notified Claims. It is submitted that thus the only logical conclusion which follows is that the Notified Claims raised by the respondent should have been referred to arbitration. However, the General Manager of the IOCL, in two cases, denied referring the Notified Claims to arbitration on the ground that there was full and final settlement between the parties, and in other three cases the General Manager has denied referring the Notified Claims to arbitration on the ground that they are 'excepted claims'. 9.7 It is submitted that as per the GCC, the General Manager is not entitled to resist the reference of a Notified Claim to arbitration on the ground of accord and satisfaction. That the aspect pertaining to full and final settlement between the parties, forms part of Clauses 6.7.1.0 and 6.7.2.0 and not of Clause 9.0.2.0. That, in fact, Clause 6.7.1.0 expressly provides that upon payment of sums under the final bill, there shall be full and final settlement, without prejudice to the Notified Claims of the contr....
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....he Statement of Objects and Reasons of the 2015 Amendment Bill, it is held that post2015, the scope of the Courts' powers at the stage of appointment of Arbitrator is confined to the examination of the existence of the arbitration agreement. It is submitted that the decision of this Court in the case of Mayavati Trading Private Limited (supra) has been subsequently followed by this Court in a recent decision in the case of Vidya Drolia (supra). 9.11 Shri Ranjith Kumar, learned Senior Advocate appearing on behalf of the respondent has also relied upon the following decisions of this Court in support of his submissions of applicability of Section 11(6A) and a very limited jurisdiction of the Courts while considering an application of Section 11(6A) of the Arbitration Act post2015. (1) Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd. (2020)2 SCC 455 (2) BSNL & Anr. v. Nortel Networks India Pvt. Ltd. (2021)5 SCC 738 (3) Pravin Electricals (P) Ltd. v. Galaxy Infra & Engg. (P) Ltd. (2021)5 SCC 671 (4) Sanjiv Prakash v. Seema Kukreja (2021)9 SCC 732 9.12 It is further submitted that although 2019 Amendment to the Arbitration Act has deleted Section 11(6A....
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....eased. It is submitted that in the aforesaid decision it is observed that merely because the contractor has issued "No Dues Certificate", if there is an acceptable claim, the Court cannot reject the same on the ground of issuance of "No Dues Certificate". 9.16 It is further submitted that the question whether a Notified Claim is an 'excepted claim', is within the exclusive domain of the Arbitrator to be answered. Reliance is placed on the decision of this Court in the case of BSNL v. Motorola India (P) Ltd. reported in (2009) 2 SCC 337 and National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. reported in (2009) 1 SCC 267 (even prior to 2015 Amendment to the Arbitration Act) as well as in the case of Zostel Hospitality (P) Ltd. vs. Oravel Stays (P) Ltd. reported in (2021) 9 SCC 765. 9.17 It is further submitted that Section 11 of the Arbitration Act expressly confers powers upon the Courts to determine the existence of an Arbitration Agreement and subsequently appoint an Arbitrator. It is submitted that Section 8 confers upon the Courts and judicial authorities the power to refer the parties to arbitration when there is an arbitration Agreement. Similarly, section 16 of the Arb....
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....ion 11(6) of the Arbitration Act has appointed the Arbitrators to adjudicate and resolve the disputes between the parties arising out of the respective contracts. The respective orders passed by the High Court appointing the Arbitrator in applications under Section 11(6) of the Arbitration Act are the subject matter of present appeals. 10.2 It cannot be disputed that both the parties are governed by the GCC. The GCC are the part of the Agreements / Contracts between the parties. Under the GCC, the parties have agreed to resolve the dispute between them only in terms of the relevant clauses of the GCC referred to hereinabove. The parties have agreed that certain specified disputes alone will be the subject of arbitration. 10.3 In the case of Narbheram Power & Steel (P) Ltd. (supra), it is observed and held that the parties are bound by the Clauses enumerated in the policy and the Court does not transplant any equity to the same by rewriting a clause. It is further observed and held that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the ....
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....giving the actual meaning to the words contained in the contract and it is not permissible for the Court to make a new contract, however reasonable, if the parties have not made it themselves. It is further observed that the terms of the contract have to be construed strictly without altering the nature of a contract as it may affect the interest of either of the parties adversely (Para 23). 10.7 In the case of Mitra Guha Builders (India) Company (supra), while interpreting the clause by which the parties agreed that the decision of the Superintending Engineer in levying compensation is final and the same is an 'excepted matter' and the determination shall be only by the Superintending Engineer and the correctness of his decision cannot be called in question in the arbitration proceedings and the remedy, if any, will arise in the ordinary course of law, the Three Judges Bench of this Court after referring to and considering the earlier decisions on the point observed and held that once the parties have decided that certain matters are to be decided by the Superintending Engineer and his decision would be final, the same cannot be the subject matter of arbitration. 10.8 In the cas....
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....o the very jurisdiction of the Arbitral Tribunal. An Arbitral Tribunal may lack jurisdiction for several reasons and nonarbitrability has multiple meanings. After referring to another decision of this Court in the case of Booz Allen & Hamiltan Inc. v. SBI Home Finance Ltd. [(2011) 5 SCC 532 (Para 34)], it is observed and held that there are facets of nonarbitrability, namely "(i) Whether the disputes are capable of adjudication and settlement by arbitration? That is, whether the disputes, having regard to their nature, could be resolved by a private forum chosen by the parties (the Arbitral Tribunal) or whether they would exclusively fall within the domain of public fora (courts). (ii) Whether the disputes are covered by the arbitration agreement? That is, whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the "excepted matters" excluded from the purview of the arbitration agreement. (iii) Whether the parties have referred the disputes to arbitration? That is, whether the disputes fall under the scope of the submission to the Arbitral Tribunal, or whether they do not arise ....
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....cts relating to a criminal matter, say, physical injury, if there is a right to damages for personal injury, then such a dispute can be referred to arbitration (Keir v. Leeman). Similarly, it has been held that a husband and a wife may refer to arbitration the terms on which they shall separate, because they can make a valid agreement between themselves on that matter (Soilleux v. Herbst, Wilson v. Wilson and Cahill v. Cahill)." 10.10 On the question, who decides on nonarbitrability of the dispute, after referring to and considering the earlier decisions on the point, more particularly, the decisions in the case of Garware Wall Ropes Ltd. (supra); Hyundai Engg. & Construction Co. Ltd. (supra) and Narbheram Power & Steel (P) Ltd. (supra), it is observed and held that the question of nonarbitrability relating to the inquiry, whether the dispute was governed by the arbitration clause, can be examined by the Courts at the reference stage itself and may not be left unanswered, to be examined and decided by the Arbitral Tribunal. Thereafter, in para 153, it is observed and held that the expression, "existence of arbitration agreement" in Section 11 of the Arbitration Act, would include....
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....sted; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the arbitral tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism." 10.11 In the recent decision of this Court in the case of DLF Home Developers Limited v. Rajapura Homes Private Limited and Another [2021 SCC Online SC 781] in which this Court also had an occasion to consider Section 11(6A) of the Arbitration Act and ultimately has observed, after referring to and considering the decision of three Judges Bench of this Court in the case of Vidya Drolia (supra) that the jurisdiction of the Court under Section 11 of the Arbitration Act is primarily to find out whether there existed a written agreement between the parties for resolution of the dispute and whether the aggrieved party has made out a prima facie arguable case, it is further observed that limited jurisdiction, however, does not denude the Court of its judicial function to look beyond the bare existence of an arbitration clause t....
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.... notified in accordance with the provisions of Clause 6.6.1.0. As per Clause 6.6.1.0, the contractor shall have to give notice in writing of his claim with respect to any extra payment or compensation in respect of the works over and above the amounts due in terms of the contract or on the validity of any deductions made or threatened by the owner from any running account bills, by giving notice in writing of his claim in this behalf to the EngineerinCharge and the Site Engineer within ten days from the date of issue of the orders or instructions relative to any works for which the contractor claims such additional payment... etc. Such notice shall give full particulars of the nature of such claim, grounds on which it is based and the amount claimed. It also further provides that the owner shall not in any way be liable to in respect of any claim by the contractor unless notice of such claim shall have been given by the contractor to the EngineerinCharge and the Site Engineer. It also further provides that a contractor shall be deemed to have waived any and all claims and all his rights in respect of any claim not notified to the EngineerinCharge and the Site Engineer in writing in....
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.... such claims not included in the Final Bill, the owner (IOCL) is absolved and discharged, even if not including the same, the contractor shall have acted under the mistake of law or fact. Thus, on a fair reading of the aforesaid provisions, it can be seen that only those claims which are Notified after following the procedure as referred to hereinabove shall be considered as "Notified Claim" and in respect of any claim other than the Notified Claim, the owner is not liable to pay and as such is absolved and discharged under the said clauses. 11.5 The next important clause is 6.7.0.0 with respect to the discharge of owner's liability. As per Clause 6.7.1.0, the acceptance by the contractor of any amount paid by the owner to the contractor in respect of the final dues of the contractor under the Final Bill upon condition that the said payment is being made in full and final settlement of all said dues to the contractor shall, without prejudice to the Notified Claims of the contractor included in the Final Bill in accordance with the provisions of Clause 6.6.3.0, be deemed to be in full and final satisfaction of all such dues to the contractor notwithstanding any qualifying remarks,....
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....ed/specified in Clause 9.0.2.0 are excluded from the scope, purview and ambit of the arbitration agreement. It further provides that any such matter which is specifically excluded viz. (i) with respect to or concerning the scope or existence or otherwise of the Arbitration Agreement; (ii) whether or not a Claim sought to be referred to arbitration by the contractor is a Notified Claim; (iii) whether or not a Notified Claim is included in the contractor's Final Bill in accordance with the provisions of Clause 6.6.3.0 and (iv) whether or not the contractor has opted for the Alternative Dispute Resolution Machinery with respect to any Notified Claim included in the contractor's Final Bill shall have to be decided by the General Manager prior to the arbitration proceeding with or proceeding further with the reference and the Arbitrator or the Arbitral Tribunal shall have no jurisdiction to entertain the same or to render any decision with respect to such matters. Thus, on a fair reading of clause 9.0.0.0, only the dispute arising out of a NOTIFIED CLAIM of the contractor included in the FINAL BILL in accordance with the provisions of Clause 6.6.3.0 shall be referred to arbitration, th....
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....ied Claims", in view of Clause 9.0.2.0, for the same claims which are not held to be 'Notified Claims' by the General Manager, the matter cannot be referred to the Arbitrator in view of the clause pertaining to excluded matters. On the other hand, it is the case on behalf of the respondent that acceptance of the amount of Rs.4,53,04,021/was under duress and coercion. It is also the case on behalf of the respondent that earlier offer dated 02.11.2016 was a conditional one and was in the nature of an offer and subsequently when the offer was partially allowed, the respondent without any delay communicated that the decision to partially allow its application for EOT is unacceptable as the same is not in accordance with the conditional offer given by the respondent. 12.1 Now, so far as the General Manager's decision on Notified Claims is concerned, it is the case on behalf of the respondent that even the decision of the General Manager on the Notified Claims will always be subject to the decision of the Arbitral Tribunal. By the impugned judgment and order the High Court concluded and summed up as under: "81. Having regard to the foregoing discussion hereinabove my conclusions can ....
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....bserved and held that such an aspect with regard to 'accord and satisfaction' of the claims may/can be considered by the Court at the stage of deciding Section 11 application, it is always advisable and appropriate that in cases of debatable and disputable facts, good reasonably arguable case, the same should be left to the Arbitral Tribunal. Similar view is expressed by this Court in the case of Vidya Drolia (supra). Therefore, in the facts and circumstances of the case, though it is specifically observed and held that aspects with regard to 'accord and satisfaction' of the claims can be considered by the Court at the stage of deciding Section 11(6) application, in the facts and circumstances of the case, the High Court has not committed any error in observing that aspects with regard to 'accord and satisfaction' of the claims or where there is a serious dispute will have to be left to the Arbitral Tribunal. However, at the same time, we do not agree with the conclusion arrived at by the High Court that after the insertion of SubSection (6A) in Section 11 of the Arbitration Act, scope of inquiry by the Court in Section 11 petition is confined only to ascertain as to whether or not....
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....ether or not a claim sought to be referred to arbitration by the contractor is a Notified Claim falls within the excluded matters and the Arbitrator or Arbitral Tribunal shall have no jurisdiction and/or authority with respect thereto. The dispute or difference whether or not a claim sought to be referred to arbitration by the contractor is a Notified Claim shall not and cannot form the subject matter of any reference or submission to arbitration. Therefore, on a fair and conjoint reading of Clause 9.0.1.0 and 9.0.2.0, it can safely be concluded that (i) only the Notified Claims of the contractor included in the Final Bill of the contractor in accordance with the provisions of Clause 6.6.3.0 shall have to be referred to arbitration; (ii) whether or not a claim sought to be referred to arbitration by the contractor is a Notified Claim or not, the Arbitrator or Arbitral Tribunal shall have no jurisdiction at all; (iii) whether or not a claim is a Notified Claim or not shall have to be decided by the General Manager and that too, prior to arbitration proceeding with or proceeding further with the reference. Therefore, once the General Manager, on the basis of the material on record ta....
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....ised matters and termed in the agreement as the excepted matters." 13.4 In that view of the matter, the High Court has misread and misinterpreted the clauses 9.0.1.0 and 9.0.2.0 and has seriously erred in holding that where there is contestation or the decision rendered by the General Manager leaves scope for argument as to whether the claims alleged by the contractor can be categorized as Notified Claim is best left to the Arbitral Tribunal. The dispute whether the claim is a Notified Claim or not is specifically excluded from the scope, purview and ambit of the arbitration agreement. Therefore, once such a dispute falls within the 'excepted matters', any decision by the General Manager on the issue of Notified Claims cannot be the subject matter of arbitration proceeding. 13.5 Therefore, the High Court has erred in referring the dispute to arbitration and appointing a sole Arbitrator to adjudicate on the dispute with respect to the claims which as such are held to be not Notified Claims by the General Manager. Therefore, the Civil Appeal No.342/2022 arising out of SLP (C) No.13408/2019 as well as Civil Appeal Nos.343/2022 and 345/2022 arising out of SLP (C) Nos.13813/2019 and ....