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M/s. Group 5 Construction Co. Pvt. Ltd. v/s M/s. Alaknanda Hydro Power Company Ltd. & Others


Company & Directors' Information:- ALAKNANDA HYDRO POWER COMPANY LIMITED [Active] CIN = U40100TG1996PLC074796

Company & Directors' Information:- D B GROUP INDIA PRIVATE LIMITED [Active] CIN = U63000MH2006PTC158759

Company & Directors' Information:- N H CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45201DL2006PTC144604

Company & Directors' Information:- K K K HYDRO POWER LIMITED [Active] CIN = U40101HP1999PLC022799

Company & Directors' Information:- C S A V GROUP INDIA PRIVATE LIMITED [Not available for efiling] CIN = U72900DL2004PTC124999

Company & Directors' Information:- V R B HYDRO POWER PRIVATE LIMITED [Active] CIN = U40101DL2005PTC141125

Company & Directors' Information:- S M HYDRO POWER PRIVATE LIMITED [Active] CIN = U40103KA2007PTC043226

Company & Directors' Information:- ALAKNANDA HYDRO POWER COMPANY LIMITED [Not available for efiling] CIN = U40101UP1996PLC019443

Company & Directors' Information:- T D CONSTRUCTION COMPANY PRIVATE LIMITED [Active] CIN = U70101AS2002PTC006719

Company & Directors' Information:- H N CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45200JH2007PTC012923

Company & Directors' Information:- N J CONSTRUCTION PRIVATE LIMITED [Active] CIN = U70102WB2012PTC186978

Company & Directors' Information:- V & C CONSTRUCTION PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049012

Company & Directors' Information:- C R CONSTRUCTION PVT LTD [Active] CIN = U45209WB1960PTC024811

Company & Directors' Information:- S M S HYDRO POWER LIMITED [Strike Off] CIN = U40101AS2003PLC007127

Company & Directors' Information:- S N S CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45204HR2009PTC039160

Company & Directors' Information:- A H CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45201TN1990PTC019675

Company & Directors' Information:- G S S GROUP PRIVATE LIMITED [Strike Off] CIN = U01212KL1995PTC009575

Company & Directors' Information:- HYDRO INDIA PRIVATE LIMITED [Active] CIN = U29120MH1998PTC121434

Company & Directors' Information:- R & S CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45201BR2012PTC018727

Company & Directors' Information:- D C GROUP PVT LTD [Active] CIN = U51109WB1981PTC033553

Company & Directors' Information:- B M S CONSTRUCTION PRIVATE LIMITED [Active] CIN = U70101WB2006PTC110196

Company & Directors' Information:- AT HYDRO PRIVATE LIMITED [Not available for efiling] CIN = U40108DL2002PTC114208

Company & Directors' Information:- A C K CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45203PN2002PTC017065

Company & Directors' Information:- J B M CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45209WB2008PTC124938

Company & Directors' Information:- S. K. B. HYDRO POWER PRIVATE LIMITED [Active] CIN = U40101HP2011PTC031558

Company & Directors' Information:- HYDRO INDIA PRIVATE LIMITED [Strike Off] CIN = U93000DL1998PTC096850

Company & Directors' Information:- A K CONSTRUCTION CO PVT LTD [Active] CIN = U45400WB1983PTC035682

Company & Directors' Information:- AT GROUP INDIA LIMITED [Active] CIN = U74999MH2013PLC247209

Company & Directors' Information:- R & L GROUP LIMITED [Strike Off] CIN = U01403HR2012PLC046635

Company & Directors' Information:- D T M CONSTRUCTION PVT LTD [Active] CIN = U45201WB1978PTC031730

Company & Directors' Information:- D P CONSTRUCTION PVT LTD [Strike Off] CIN = U70101WB1987PTC042320

Company & Directors' Information:- A V CONSTRUCTION CO PVT LTD [Active] CIN = U45202PB1982PTC004971

Company & Directors' Information:- G N CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45202OR2000PTC006244

Company & Directors' Information:- N B S D CONSTRUCTION PVT. LTD. [Strike Off] CIN = U45201WB1993PTC058364

Company & Directors' Information:- A K G CONSTRUCTION PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U45201DL2005PTC134347

Company & Directors' Information:- R. S. INDIA HYDRO POWER PRIVATE LIMITED [Active] CIN = U40101DL2009PTC186651

Company & Directors' Information:- R H P CONSTRUCTION COMPANY PRIVATE LIMITED [Strike Off] CIN = U45203MP2001PTC014739

Company & Directors' Information:- P K A S CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U74899DL2005PTC138117

Company & Directors' Information:- O S CONSTRUCTION PVT LTD [Strike Off] CIN = U00351JH1990PTC003764

Company & Directors' Information:- S S POWER CONSTRUCTION CO PVT LTD [Strike Off] CIN = U31909WB1972PTC028554

Company & Directors' Information:- A + E CONSTRUCTION PRIVATE LIMITED [Active] CIN = U74899DL1990PTC042290

Company & Directors' Information:- B H CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45200MH2009PTC193976

Company & Directors' Information:- K L G CONSTRUCTION INDIA PRIVATE LIMITED [Strike Off] CIN = U45201MH2015PTC264933

Company & Directors' Information:- ALAKNANDA CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45400MH2008PTC182519

Company & Directors' Information:- G B HYDRO POWER PRIVATE LIMITED [Active] CIN = U40103TG2010PTC067418

Company & Directors' Information:- R M HYDRO POWER PRIVATE LIMITED [Active] CIN = U40109TG2010PTC067300

Company & Directors' Information:- R M D CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC185164

Company & Directors' Information:- U P CONSTRUCTION PRIVATE LIMITED [Active] CIN = U45400DL2014PTC271791

Company & Directors' Information:- V 2 S CONSTRUCTION PRIVATE LIMITED [Strike Off] CIN = U45400DL2014PTC273750

Company & Directors' Information:- A B G S CONSTRUCTION PVT LTD [Strike Off] CIN = U45201WB1986PTC040667

Company & Directors' Information:- B C R CONSTRUCTION PRIVATE LIMITED [Active] CIN = U99999MH1979PTC021005

    Arbitration Application No. 118 of 2019

    Decided On, 18 June 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE A. RAJASHEKER REDDY

    For the Appearing Parties: -----------



Judgment Text


This Arbitration Application is filed, under Section 11 of the Arbitration and Conciliation Act, 1996 (for short “the Act”), for appointment of an Arbitrator for adjudication and settlement of the disputes between the parties, by passing an award.

The case of the applicant-company is that it deals with the work of earth excavation for hydro power plants. While so, the 2nd respondent-company deals with the developing of hydro power projects and the 1st respondent-company is its ancillary unit. As such, during the course of undertaking the hydro power project work by the 2nd respondent-company in Srinagar, Pauri Garhwal, Uttarakhand, apart from certain others, the applicant was also assigned a work contract. Accordingly, a written agreement, dated 12.09.2011, was entered into between the 2nd respondent and the applicant.

However, during the course of execution of the said agreement, disputes arose in relation to payment of outstanding retention amounts by respondent Nos.1 and 2 for the works undertook by the applicant-company. Therefore, the applicant issued three legal notices dated 20.12.2018, 23.08.2019 and 01.10.2019 to respondent Nos.1 and 2 to appoint an arbitrator to resolve the disputes. As there was no response, the present Arbitration Application is filed.

Counter-affidavits are filed by the respondents denying the existence of arbitration clause in the agreement dated 12.09.2011 entered between the parties. It is also denied that the 1st respondent is a party to the so-called agreement dated 12.09.2011 and it is an ancillary unit of the 2nd respondent. The claim of the applicant on merits is also denied and, accordingly, sought for dismissal of the application.

The learned counsel for the applicant submits that Clause (16) of the agreement, dated 12.09.2011, provides for arbitration and, accordingly, the same is invoked by the applicant. He further submits that since the 1st respondent is the subsidiary company of the 2nd respondent, the same is binding on the 1st respondent. Therefore, the learned counsel prays for appointment of an Arbitrator for adjudication of the disputes between the parties.

On the other hand, the learned counsel for the respondents submits that the 1st respondent is not a party to the said agreement at all and, accordingly, the claim made against the 1st respondent is untenable. He further submits that Clause (16) of the agreement, dated 12.09.2011, only provides for disputes resolution, and there is no arbitration clause at all. Therefore, the question of reference of disputes to the arbitrator does not arise in the present case. In support of his contentions, the learned counsel relies on the judgments of the Hon’ble Supreme Court in the cases of K.K. Modi vs. K.N. Modi and others (1998) 3 SCC 573) and Karnataka Power Transmission Corporation Limited and another vs. Deepak Cables (India) Limited (2014) 11 SCC 148).

In this case, firstly, it is to be seen that, since the 1st respondent is not at all a party to the agreement, dated 12.09.2011, the claim made by the applicant against the 1st respondent is untenable.

Secondly, the very existence of the arbitration clause in the agreement dated 12.09.2011 is disputed by the respondents. Therefore, it is necessary to refer to Clause (16) of the agreement, on which reliance is placed by the applicant for reference to arbitration. It reads as follows:-

“16.0 Disputes Resolution

Attempt shall be made by both parties to resolve Disputes arising if any, by mutual discussions at the level of Engineer-in-charge at site of the contractor (GVKPTSL) and Project Manager of Contractor. If the Disputes could not be resolved at this level, then the decision of the Director of the Contractor after discussions with the Subcontractor is final and binding.”

A plain reading of the said Clause does not at all reveal that in case disputes arise and the parties fail to settle the same, they can be referred to arbitration. What all it provides is that in case disputes arise between the parties, the decision of the Director of the Contractor would be final and binding. There is no whisper about arbitration. As such, by any stretch of imagination, the parties have never intended to go for arbitration, in case disputes arise and not settled by mutual discussions.

In K.K.Modi’s case (1 supra), the Hon’ble Supreme Court held that mere reference of issues to an expert for decision does not constitute an arbitration agreement. Further, in Karnataka Power Transmission Corporation Limited’s case (2 supra), the Hon’ble Supreme Court held that unless there is an arbitration agreement which provides that parties agree to submit all or certain disputes to adjudication of arbitrator, no reference can be made to arbitration. The intention of the parties expressing consensual acceptance to refer disputes to arbitrator is mandatory.

In the present case, according to the Clause (16), extracted hereinabove, in case disputes between the parties cannot be resolved at the level of Engineer-in-charge, the decision of the Director of the Contractor is final. There is no arbitration agreement providing for reference of disputes to t

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he arbitrator, in case the parties are not able to settle the same. Therefore, in the absence of any clause in the agreement, dated 12.09.2011, expressing intention of the parties to refer the disputes to arbitrator, the question of invoking the same and referring the disputes for arbitration does not arise. In view of the facts and circumstances of the case, I do not see any reason to entertain this application. Accordingly, the Arbitration Application is dismissed, leaving it open to the applicant to avail the remedies available to it under law. No order as to costs.
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