TaxTMI 
TaxTMI 
2022 (7) TMI 974
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....een the parties for arbitration, the Indian 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....
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....ttached thereto, giving particulars of the nature of the claim, grounds on which it is based, 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....
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....nal Bill in accordance with the provisions under Clause 6.6.3.0 hereof and associated provisions thereunder, be deemed to be 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 suc....
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....mes of such nominees being furnished by the OWNER for the purpose, the Sole Arbitrator shall be selected by the OWNER out of the said panel. 9.0.2.0 Any dispute(s) 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) ....
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....rious communications and the final bill should be treated as withdrawn. 4.3. The TKIS having received the aforesaid communication from the NCCL, made its recommendations visàvis the request for EOT made by the 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 p....
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.... not approach the General Manager but the Arbitration Petition filed before the High Court was forwarded by the IOCL to the General Manager for its determination under Clause 9.0.2.0 of the GCC. That, in all the remaining four cases (Civil 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....
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.... case, Section 11(6A) itself cannot be invoked as no arbitration clause exists in regard to these other disputes. This would be a RESTRICTED arbitration clause. 8.3 It is further submitted by the learned Attorney General that when all the conditions mentioned in the GCC are 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 20....
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.....4.0, 6.6.5.0, 6.6.6.0, 6.7.0.0, 6.7.1.0, 6.7.2.0, 6.7.3.0, 9.0.0.0, 9.0.1.0, 9.0.1.1, 9.0.2.0 and 9.0.3.0. It is contended that as per Clause 9.0.1.0, the only matter to which a reference to arbitration can be sought is a "Notified Claim" included in the final bill and to no other dispute. That all disputes 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....
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.... required to be appreciated and/or considered. That pursuant to the said statement by the NCCL, the IOCL (petitioner) levied a price adjustment of only 4% as opposed to 10%; and the respondent expressly withdrew its Notified Claims. It is submitted that the IOCL also paid the dues as per the final bill. The Notified Claims, having been withdrawn, therefore, could 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 deducte....
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....e parties to arbitration and appointing the sole Arbitrator. 9. Present appeals are vehemently opposed by Shri Ranjith Kumar, learned Senior Advocate appearing on behalf of the respondent - NCCL. 9.1 Shri Ranjith Kumar, learned Senior Advocate appearing for the respondent - NCCL has made following submissions pointing out the relevant facts which, according to him, are relevant for deciding 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 presen....
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....itions before the High Court. It is submitted that in a completely malafide and deceptive manner, IOCL claims to have made a reference to the General Manager who determined the nature of claims after filing of the counter affidavit by NCCL before this Court. (15) It is submitted that therefore, as such, IOCL is attempting to scuttle respondent's contractual right to pursue arbitration by bringing on record a document nearly two years after the respondent invoked the arbitration 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 C....
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....spondent is (i) a Notified Claim as defined under Clause 1.21.0.0 r/W. Clause 6.6.1.0; and (ii) whether the Notified Claim is included in the final bill in accordance with Clause 6.6.3.0. That the General Manager is not empowered under the said Clause to state that a claim is not arbitrable due to full and final settlement between the parties or due to a claim being an excepted claim. 9.6 It is submitted that in the present case, the IOCL has admitted that the claims raised by the respondent are 'Notified Claims' and this fact 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 'e....
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....m is settled, it leaves no arbitral dispute subsisting under the agreement to be referred to the Arbitrator. 9.10 It is submitted that the conflicting decisions were considered and the issue has now been settled by a Three Judges Bench of this Court in a subsequent decision rendered in the case of Mayavati Trading Private Limited v. Pradyuat Deb Burman [(2019) 8 SCC 714]. That after considering in detail the 246th Law Commission Report; the report of the HighLevel Committee regarding institutionalization of arbitration in India and the 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....
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....rt has to restrict itself to the issue of existence of the Arbitration Agreement at Section 11 stage and cannot delve into the issue of "accord and satisfaction" is the submission. 9.15 Relying upon the decisions of this Court in the case of Ambica Construction v. Union of India reported in (2006) 13 SCC 475 and R.L. Kalathia & Co. v. State of Gujarat reported in (2011) 2 SCC 400, it is submitted that as observed by this Court in the aforesaid two decisions, in many instances, contractors are coerced to issue a nodues certificate, without which no amount would be released. 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)....
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....sed the same and has suppressed this factum of pursuing two remedies simultaneously. It is submitted that therefore as the petitioner has elected to pursue the proceeding before the Arbitral Tribunal and as per the doctrine of election of remedies, the petitioner ought not to be permitted to continue the present proceedings before this Court. Making above submissions, it is prayed to dismiss the present appeals. 10. We have heard learned Senior Advocates appearing for the respective parties at length. 10.1 By the impugned orders the High Court in exercise of powers under Section 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 r....
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....tment Corporation & Anr. v. Diamond and Gem Development Corporation Ltd. & Anr. [(2013) 5 SCC 470], it is observed and held that a party cannot claim anything more than what is covered by the terms of the contract, for the reason that the contract is a transaction between two parties and has been entered into with open eyes and by understanding the nature of contract. It is further observed that thus the contract being a creature of an agreement between two or more parties has to be interpreted giving literal meanings unless there is some ambiguity therein. The contract is to be interpreted 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....
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....not have decided the said "excepted" dispute. We, therefore, hold that it was not open to the Arbitrator to decide the issues which were not arbitrable and the award, so far as it relates to disputes regarding nonarbitrable disputes is concerned, is bad in law and is hereby quashed." 10.9 At this stage, a recent decision of this Court in the case of Vidya Drolia (supra), which, as such, is postinsertion of Section 11(6A) of the Arbitration Act, is required to be referred to. In the said decision it is observed and held that the issue of nonarbitrability of a dispute is basic for arbitration as it relates to 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....
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....t in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject matter is nonarbitrable. Only when the answer is affirmative that the subject matter of the dispute would be nonarbitrable. 76.6 However, the aforesaid principles have to be applied with care and caution as observed in Olympus Superstructures (P) Ltd.: (SCC p. 669, para 35) "35. ...Reference is made there to certain disputes like criminal offences of a public nature, disputes arising out of illegal agreements and disputes relating to status, such as divorce, which cannot be referred to arbitration. It has, however, been held that if in respect of facts 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 re....
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....s a demurrer the court may interfere at the Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is nonexistent, invalid or the disputes are nonarbitrable, though the nature and facet of nonarbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably "nonarbitrable" and to cut off the deadwood. The court by default would refer the matter when contentions relating to nonarbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; 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 a....
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....re and exceptional cases, where the claims are ex facie timebarred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference." 11. Applying the law laid down by this Court in the aforesaid decisions, let us consider the relevant clauses of the GCC governing the parties and the procedure to be followed in case of disputes between the parties to the contract on nonpayment of alleged dues may be on account of extra payment or compensation in respect of the works over and above the amounts due in terms of the contract and/or the dispute on the validity of any deductions made or threatened by the owner. 11.1 Clause 1.21.0.0 defines "Notified Claims". It means a claim of the contractor 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 an....
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....rdance with the provisions of Clause 6.6.3.0. It further provides that in and all Notified Claims not specifically reflected and included in the Final Bill in accordance with the provisions of Clause 6.6.3.0 shall be deemed to have been waived by the contractor and the owner (IOCL) shall have no liability in respect thereof and the contractor shall not be entitled to raise or include in the Final Bill any claims other than a Notified Claim conforming in all respects and in accordance with the provisions of Clause 6.6.3.0. 11.4 Clause 6.6.4.0 provides that no claim shall on any account be made by the contractor after the Final Bill. It further provides that any such claim shall be deemed to have been waived and with respect to all 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, t....
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....ferred to the arbitration of a Sole Arbitrator. It also further provides that the owner may prefer its Claims against the contractor as counterclaims if a Notified Claim of the contractor has been referred to arbitration. It also further provides that the contractor shall not, however, be entitled to raise as a setoff, defence or counterclaim any claim which is not a NOTIFIED CLAIM included in the contractor's Final Bill in accordance with the provisions of Clause 6.6.3.0. 11.8 Clause 9.0.2.0 is an exclusion clause by which, certain matters are specifically excluded from the scope, purview and ambit of the Arbitration Agreement. It provides that disputes or differences with respect to or concerning or relating to any of the matters mentioned/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 co....
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....l value of contract and thereafter IOCL released the payment of Rs.4,53,04,021/against NCCL's final bill (adjusting price discount of Rs.6.4 Crores as against Rs.14.8 Crores) and also returned NCCL's Bank Guarantee which came to be fully accepted by the respondent NCCL. It is the case of IOCL that thereafter, it was not open for the respondent to raise any further claim. Therefore, it is the case on behalf of the petitioner that, there being 'accord and satisfaction' for the claim, being an 'excepted claim', it was not open for the respondent to invoke the arbitration agreement and request for appointment of an Arbitrator. It is also the case on behalf of the petitioner IOCL that in view of the specific decisions by the General Manager, on "Notified 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 date....
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....bitral Tribunal to reach a conclusion one way or another. This approach would be in keeping with the doctrine of Kompetenz Kompetenz; a doctrine which has statutory recognition under Section 16 of the 1996 Act." 13. Having heard learned Counsel appearing for the respective parties and in the facts and circumstances of the case, the issue / aspect with regard to 'accord and satisfaction' of claims is seriously disputed and is debatable. Whether, in view of the acceptance of Rs.4,53,04,021/by the respondent NCCL which was released by IOCL on the offer / letter made by the respondent NCCL dated 02.11.2016 there is an instance of 'accord and satisfaction' of the claims is a good and reasonably arguable case. It cannot be said to be an open and shut case. Therefore, even when it is observed 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 Dr....
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....and interlinked. 13.2 Now, so far as the Civil Appeal No.342/2022 arising out of SLP (C) No.13816/2019 is concerned, the General Manager in exercise of powers under Clause 9.0.2.0 had declared that none of the claims of the respondent is a Notified Claim. From the communication dated 22.06.2018, it appears that the General Manager, after elaborately dealing with all the alleged Notified Claims of the respondent has thereafter found that none of the claims made by the respondent is a Notified Claim. On a conjoint reading of the relevant clauses of the GCC viz. Clauses 9.0.1.0 and 9.0.2.0, the dispute arising out of Notified Claims only, which is included in the Final Bill of the contractor can be referred to arbitration. However, as per Clause 9.0.2.0, any dispute or difference on whether 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....
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....unequivocal acceptance of the terms of the contract by the parties and this is where the courts have found out lacking in its jurisdiction to entertain an application for reference to arbitration as regards the disputes arising therefrom and it has been the consistent view that in the event the claims arising within the ambit of excepted matters, question of assumption of jurisdiction of any arbitrator either with or without the intervention of the court would not arise; The parties themselves have decided to have the same adjudicated by a particular officer in regard to these matters: what are these exceptions however are questions of fact and usually mentioned in the contract documents and forms part of the agreement as such there is no ambiguity in the matter of adjudication of these specialised 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....