O.M.P. (COMM) 9/2017 Page 1 of 42

$~J

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 23.09.2025

Judgment pronounced on: 06.01.2026

+ O.M.P. (COMM) 9/2017

SJVN LTD ..…Petitioner

Through: Mr. Uttam Datt Sr. Advocate with

Ms. Sonakshi Singh Adv., Mr. Kumar

Bhaskar Adv.

versus

PATEL GAMMON JOINT VENTURE ……Respondent

Through: Mr. SK Chandwani, Adv.

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

1. This is a petition filed under Section 34 of the Arbitration and

Conciliation Act, 1996 (“1996 Act”) seeking to partially set aside the

Arbitral Award dated 01.09.2016 passed in the arbitration proceedings

titled as “Patel Gammon Joint Venture (PGJV) vs. SJVN Limited

(SJVN)”, only to the extent of Claim No. 4,which was allowed in

favour of the respondent.

O.M.P. (COMM) 9/2017 Page 2 of 42

FACTUAL BACKGROUND

2. The petitioner i.e., M/s SJVN Ltd., a Central Public Sector Enterprise,

is a joint venture of Government of India and Government of

Himachal Pradesh. It is engaged in the business of electricity

generation and owns and operates hydroelectric power stations in the

country.

3. The respondent i.e., M/s Patel Gammon Joint Venture, is a joint

venture consortium of Patel Engineering Ltd. and Gammon India Ltd.

4. The petitioner awarded the respondent a Contract dated 15.03.2007

(“Contract”), wherein the respondent had to undertake civil

construction works at petitioner‟s 412 MW hydroelectric power

project at Rampur, Himachal Pradesh, on river Satluj (“project”).

5. The General Conditions of Contract (“GCC”) forms part of the

Contract and contains an arbitration clause being Clause No. 20.6,

which reads as under:-

“20.6 Arbitration

Unless settled amicably, any dispute in respect of which the

DB's decision/ recommendations (if any) has not been

accepted by either party and notice giving intention to

commence Arbitration has been served under sub-clause

20.4, shall be finally settled (subject to further rights

conferred upon under the law) by Arbitration as per Indian

Arbitration and Conciliation Act 1996 in case of disputes

between the Employer and a domestic Contractor, and

O.M.P. (COMM) 9/2017 Page 3 of 42

under the rules of arbitration of the International Chamber

of Commerce in case of disputes between the Employer and

a foreign Contractor, subject to following :

(a) Dispute shall be settled by three arbitrators, one each to

nominated by the parties and third one to be appointed by

the Secretary (Power), Ministry of Power, Government of

India in case of disputes between the Employer and a

domestic Contractor, whereas, in case of dispute between

the employer and a foreign contractor, the third arbitrator

shall be appointed by the International Chamber of

Commerce. The definition of domestic bidders and foreign

bidders shall be as defined in the World Bank guidelines

(latest addition)

(b) The venue of arbitration shall be either Shimla or Delhi

or Project site only.”

6. The work was an item rate contract and was awarded at BOQ rates.

Technical Specifications formed part of the Contract, and laid down

all the technical details of the works i.e., how and what work is to be

executed and how work done will be measured and paid.

7. The work under the Contract was divided into two components i.e.,

package 1.0 and package 2.0. The present petition is only pertaining to

package 1.0 work, which pertains to “construction of civil works Head

Race Tunnel (“HRT”) Sta 50.61 m to Sta 12900 m, including cut and

cover section, river diversion works, adits, vehicular gates etc” and

involved works of construction of HRT, through which the river is

O.M.P. (COMM) 9/2017 Page 4 of 42

diverted. This involved extensive excavation works.

8. On 25.03.2007, the respondent began with the excavation work. In RA

Bill No. 22, in April 2008, the respondent claimed haulage beyond 1

km for overbreak material for the first time, but the petitioner refused

to pay the same. Consequently, the parties discussed the said issue in

the half yearly contract review meeting on 31.07.2009 and the

petitioner agreed and paid the haulage for overbreak from RA Bill No.

23 to RA Bill No. 44 purely on adhoc basis. However, from RA Bill

No. 45 the petitioner stopped such payment and informed the

respondent that the same was not payable under the Contract and also

recovered the haulage paid to the respondent in the previous RA Bills.

The petitioner vide letter dated 17.11.2011 rejected the claim of the

respondent for haulage.

9. Subsequently, the respondent, filed its claim before the Dispute Board

and the Dispute Board vide its decision dated 31.10.2012,

recommended the claim in favour of the respondent. However, the

petitioner rejected Dispute Board‟s recommendations.

10. The respondent initiated arbitration, and the Arbitral Tribunal was

duly constituted and two claims were raised before the Arbitral

Tribunal, namely Claim No. 3 and Claim No. 4. Under Claim No. 4

followings issues were framed by the Arbitral Tribunal:-

“7.0 Framing of Issues

xxxxxxxx

Claim No.4

O.M.P. (COMM) 9/2017 Page 5 of 42

5. Whether the Claimant is entitled to Claim No.4 towards

haulage of excavated materials for every km beyond 1 km

from the portal, as per BOQ rate based on in-situ volume of

excavated material beyond pay line except approved over

break?

6. Whether the Claimant is entitled to payment of hydro

allowance and escalation on the claim amount in respect of

Claim No.4?

7. Whether the Claimant is entitled to payment of interest on

claim amount in respect of Claim No. 4, if so, at what rate

and for which period?”

11. The Arbitral Tribunal passed the Arbitral Award, wherein the Arbitral

Tribunal has unanimously rejected Claim No. 3 of the respondent and

majority view allowed Claim No. 4 in favour of the respondent and

third member of the Tribunal has passed a dissenting award rejecting

the Claim No. 4 of the respondent.

12. Hence, the petitioner has filed the present petition, partially

challenging the Arbitral Award, to the extent of only Claim No. 4

allowed in favour of the respondent.

SUBMISSIONS ON BEHALF OF THE PETITIONER

13. Mr. Datt, learned senior counsel for the petitioner submits that this

Court has the territorial jurisdiction to adjudicate the present petition.

It is stated that as per Clause No. 20.6 of the GCC (as amended), the

venue of arbitration is Shimla or Delhi or project site (Rampur,

Himachal Pradesh) and there is no specific reference to seat.

O.M.P. (COMM) 9/2017 Page 6 of 42

Admittedly, the entire arbitral proceedings took place and was

concluded in Delhi, including the passing of the Award. Hence, the

seat of the arbitration will be Delhi.

14. It is further submitted that although in sub-clause No. 1.4 of the

Particular Conditions of the Contract states that the Courts at

Himachal Pradesh shall have exclusive jurisdiction over the matters

arising out of this contract, however, it is distinct from and external to

the arbitration clause and cannot govern arbitral disputes. It applies

only to non-arbitral disputes, if any, thereby conferring jurisdiction

upon the Courts in Himachal Pradesh. In respect of arbitral disputes,

jurisdiction shall vest in the Courts at the seat of arbitration, i.e.,

Delhi.

15. The learned senior counsel for the petitioner has heavily relied upon

BGS SGS SOMA JV v. NHPC

1

, to assert that where there is no

contractually fixed seat of arbitration, the venue may be treated as the

seat and such Courts shall have territorial jurisdiction in relation to the

arbitration. Further while referring to Precitech Enclosures Systems

(P) Ltd. v. Rudrapur Precision Industries

2

and Viva Infraventure (P)

Ltd. v. New Okhla Industrial Development Authority

3

it has been

stated that in these cases the Court was dealing with peculiar clause

wherein the exclusive jurisdiction was built in the arbitration clause,

and was not as a separate clause outside of the arbitration clause in the

contract, as is in the present case.

1

(2020) 4 SCC 234.

2

2025 SCC OnLine Del 1609.

3

2025 SCC OnLine Del 4684.

O.M.P. (COMM) 9/2017 Page 7 of 42

16. On merits, he submits that the majority view exceeded its jurisdiction,

by awarding Claim No. 4 in favour of the respondent, contrary to

specific provisions of the Contract and provisions of the Technical

Specifications and decided the claim based on its own “logical and

reasonable” view, instead of the contract provisions. Hence, it is

submitted that the impugned portion of the Award i.e., Claim No. 4 is

contrary to Section 28(3) of the 1996 Act, as the contract provisions

have been deliberately ignored and is therefore patently illegal and

liable to be set aside.

17. It is submitted that Clause No. 6.4(vii) of the Technical Specification

prohibits measurement of overbreak for payment and as per Clause

No. 6.5(ii)(e) of the Technical Specification, contractor is obliged to

remove the excavated material from overbreak at no extra cost to the

petitioner. It is further stated that in terms of Clause No. 6.5(ii)(a) of

Technical Specification overbreak is neither measured nor paid for,

except defined cavities. Hence, the respondent was obliged to remove

the debris from such over break at its own cost.

18. It is further submitted that as far as the overbreak is concerned the

Contract provided no distinction between haulage beyond 1 km and

within 1 km. The overbreak was to be neither measured nor paid for,

therefore haulage for such overbreak debris is not payable. In view of

the same, the respondent‟s reliance on BOQ to claim that BOQ

permits haulage beyond 1 km even for overbreak is untenable, as there

is no such prescription in the BOQ.

19. It is submitted that the measurement and payment work is provided in

O.M.P. (COMM) 9/2017 Page 8 of 42

the Technical Specification, and not in BOQ. The BOQ only provided

rate at which haulage beyond 1 km was to be measured and paid and

does not say that haulage for overbreak will be paid. Technical

Specification strictly prohibits payment for overbreak.

20. It is submitted that the majority view erred in observing that restricting

haulage to payline was unfair, it had no jurisdiction to comment that

any provision of the Contract was unfair, especially when the same

was not challenged by the respondent.

21. It is submitted that the BOQ items 1.4 and 2.1.4 provides for

quantities of debris for which payment was supposed to be made and

the quantities mentioned in the BOQ did not include overbreak.

Hence, the reference to additional distance beyond 1 km in the said

description of work in the BOQ item does not include overbreak

quantities and hence, these BOQ items cannot be invoked for claiming

haulage for overbreak excavations.

22. It is submitted that the majority view by introducing a term for

payment of haulage beyond 1 km for overbreak, despite there being no

such provision, has re-written the terms of the Contract. By reading

BOQ in isolation from the provisions of the Technical Specifications,

BOQ has been applied in a non-judicious manner andsuch an

approach is impermissible in law. Reliance is placed on OPG Power

Generation Pvt. Ltd. v. Enexio Power Cooling Solutions India Pvt.

Ltd.

4

.

23. Further, the respondent being conscious that no payment for

4

(2025) 2 SCC 417.

O.M.P. (COMM) 9/2017 Page 9 of 42

excavation or haulage could be claimed for overbreak at all, did not

make a claim for overbreak haulage for a distance up to 1 km, which

admittedly was neither measured nor paid to the respondent. It is

further submitted that the fact that the petitioner paid the claim raised

by the respondent in RA Bills 23 to 44 does not justify respondent‟s

claim, which otherwise is not payable as per the Contract. Further, in

terms of Clause No. 14.6 of the GCC, the petitioner rectified the

payments errors in previous RA Bills, and recovered same.

24. Lastly, it is submitted that after the conclusion of the hearings, the

Arbitral Tribunal reserved its Award. However, before the Award was

delivered, the respondent filed an application seeking to file additional

documents, to quantify its claim on haulage and sought to produce

cross section drawings of the excavation, which it claimed was

verified by the petitioner. The Arbitral Tribunal allowed the

application and directed the petitioner to reconcile the cross sections

provided by the respondent, without seeking a written reply from the

petitioner and recorded that no oral submissions will be allowed to be

made by either party. Petitioner filed its objection and showed its

inability to reconcile the cross-sections as it had no data from which it

could do the reconciliation. However, the Arbitral Tribunal, vide its

order dated 16.05.2016 rejected the objection of the petitioner and

reiterated its direction for reconciliation of the cross sections. In

deference to the direction of the Arbitral Tribunal, the petitioner filed

its reconciliation report, wherein it stated that no quantification of

overbreak quantity was available with the petitioner. It is submitted

O.M.P. (COMM) 9/2017 Page 10 of 42

that the Arbitral tribunal not only allowed the claim of the respondent,

but also relied upon the unverified cross sections submitted by the

respondent as evidence of quantification of its claim.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

25. At the outset, Mr. Chandwani, learned counsel for the respondent

submits that the present petition is not maintainable due to lack of

jurisdiction, as the Contract provides exclusive jurisdiction to the

Courts in Himachal Pradesh.

26. It is submitted that the Particular Conditions of the Contract (Section

VIII) supplements the GCC and provides that, in case of conflict or

inconsistency, Particular Conditions of the Contract shall prevail. Sub-

Clause 1.4 of the Particular Conditions of the Contract i.e.,

„Governing Law‟ clearly states “Indian Law (Appropriate Courts in

the State of Himachal Pradesh only shall have exclusive jurisdiction

over matters arising out of this Contract)”.

27. It is further submitted that neither party has an office in Delhi, nor did

any cause of action arise in Delhi. Further, the Contract was executed

in Shimla, and the project site is in Himachal Pradesh. Even the

Arbitral Award was communicated to the parties at Shimla and Noida.

Hence, it the parties have contractually chosen Himachal Pradesh as

the appropriate the Court, since the work was to be executed in the

State of Himachal Pradesh. Thus, the petitioner cannot bypass this

stipulation by filing the present petition before this Court merely

because arbitral hearings were conducted in Delhi. The learned

counsel for the respondent to buttress his contention has placed

O.M.P. (COMM) 9/2017 Page 11 of 42

reliance on Hakam Singh v. Gammon (India) Ltd.

5

, and Swastik

Gases v. Indian Oil Corp.

6

.

28. It is submitted that Clause No. 20.6 of the GCC (as reproduced above)

and more particularly in sub-clause (b) provides for three possible

venues for hearings i.e., Shimla, Delhi, or the Project Site (Rampur),

but these relate solely to convenience and logistics. The Contract does

not define Delhi as the seat of arbitration or alter the exclusive

jurisdiction clause. Reliance is placed on M/s Ravi Rajan Developers

Pvt. Ltd. v. Aditya Kumar Chatterjee

7

and Precitech Enclosure

Systems (supra), to assert that a specified venue for arbitral sittings

does not confer jurisdiction upon the Courts of that place nor does it

determine the seat of arbitration.

29. On merits, Mr. Chandwani, learned counsel for the respondent

submits that under Section 34 of the 1996 Act there is limited scope of

challenge to an Arbitral Award and once the Arbitral Tribunal has

applied their mind to the pleadings of the parties and the evidence

adduced before them, the Court is not to sit as a Court of Appeal over

the decision of the Arbitral Tribunal and examine merits of the Award.

Thereby, it is stated that whether the Claim No.4 of the respondent

was valid and justified under the Contract, was a decision within the

domain of the Arbitral Tribunal, which was rightly decided by the

majority view after careful consideration of the pleadings, provisions

of the Contract and evidence.

5

(1971) 1 SCC 286.

6

(2013) 9 SCC 32.

7

2022 SCC Online SC 568.

O.M.P. (COMM) 9/2017 Page 12 of 42

30. It is submitted that during execution of work, the parties themselves

construed the provisions of the Contract, including the provisions

contained in Technical Specifications and came to a conclusion that

the payment in respect for haulage of excavated materials for every

additional Km beyond 1 Km based on in-situ volume of actually

excavated material as per certified sections is payable by the petitioner

to the respondent. Accordingly, from 23

rd

RA Bill till 44

th

RA Bill,

the amount for such work was paid to the respondent. However, since

the 45

th

RA Bill, the petitioner unilaterally and arbitrary recovered the

entire amount paid for such work. Thus, the respondent referred the

disputes to the Dispute Board and the Dispute Board, after hearing the

parties and construing the provisions of the Contract, came to a

finding that the respondent is entitled to get payment for haulage of

excavated materials based on in-situ volume of excavated material

from the tunnel excavation beyond pay line.

31. It is submitted that the Arbitral Tribunal permitted the respondent to

place cross-section records on record for quantification, through

specific Orders and also examined the petitioner‟s reconciliation

reports on record and thereafter, rejected petitioner‟s objection that

reconciliation was not possible. Such procedural decisions fall within

the discretion of the Arbitral Tribunal and it is a settled principle that

mere dissatisfaction with the procedural discretion of Arbitral

Tribunal does not amount to a denial of natural justice.

32. Similarly, the majority view after constructing the relevant provisions

of the Contract came to the conclusion that the respondent is entitled

O.M.P. (COMM) 9/2017 Page 13 of 42

for payment in respect of its Claim No.4. Hence, it is submitted that

the decision of majority view is just and valid in terms of the Contract

and in law. It is submitted that the contentions raised by the petitioner

in the petition were also raised before the Arbitral Tribunal and the

same have been effectually and properly discussed and dealt with in

the majority Award. The findings of the majority view on Claim No. 4

is well reasoned and are supported by sufficient and cogent reasons.

33. It is submitted that it is within the jurisdiction of the Arbitral Tribunal

to interpret the Contract and once there is no dispute as to the

Contract, the interpretation of that contract is for the Arbitral Tribunal

to do, on which the Court would not substitute its own interpretation.

Hence, it is contended that the Award under Claim No. 4 by the

majority view is based upon interpretation of the Contract, which has

rightly been interpreted and hence, needs no interference.

ANALYSIS AND FINDINGS

34. I have heard learned counsels for the parties and perused the material

available on record including the judgments cited.

35. Since the present petition is pending since the year 2017, I am

proceedings to decide the petition on merits first.

36. The Court under Section 34 of the 1996 Act has very limited and

narrow scope of interference in a challenge to an Arbitral Award.

Most recently, the Hon‟ble Supreme Court in Ramesh Kumar Jain v.

Bharat Aluminium Co. Ltd.

8

, while laying down the scope of

interference under Section 34 and 37 of the 1996 Act observed as

8

2025 SCC OnLine SC 2857.

O.M.P. (COMM) 9/2017 Page 14 of 42

under:-

“28. The bare perusal of section 34 mandates a narrow lens

of supervisory jurisdiction to set aside the arbitral award

strictly on the grounds and parameters enumerated in sub-

section (2) & (3) thereof. The interference is permitted

where the award is found to be in contravention to public

policy of India; is contrary to the fundamental policy of

Indian Law; or offends the most basic notions of morality or

justice. Hence, a plain and purposive reading of the section

34 makes it abundantly clear that the scope of interference

by a judicial body is extremely narrow. It is a settled

proposition of law as has been constantly observed by this

court and we reiterate, the courts exercising jurisdiction

under section 34 do not sit in appeal over the arbitral

award hence they are not expected to examine the legality,

reasonableness or correctness of findings on facts or law

unless they come under any of grounds mandated in the said

provision. In ONGC Limited. v. Saw Pipes Limited, this

court held that an award can be set aside under Section 34

on the following grounds:“(a) contravention of fundamental

policy of Indian law; or (b) the interest of India; or (c)

justice or morality, or (d) in addition, if it is patently

illegal.”

29. …. Hence, it is very well settled that arbitral awards are

not liable to be set aside merely on the ground of erroneous

O.M.P. (COMM) 9/2017 Page 15 of 42

in law or alleged misappreciation of evidence and there is a

threshold that the party seeking for the award to be set

aside has to satisfy, before the judicial body could enter into

the realm of exercising its power under section(s) 34 & 37.It

is also apt and appropriate to note that re-assessment or re-

appreciation of evidence lies outside the contours of judicial

review under section(s) 34 and 37. This court in Punjab

State Civil Supplies Corporation Limited v. Sanman Rice

Mills, at Paragraph 12 observed that even when the arbitral

awards may appear to be unreasonable and non-speaking

that by itself would not warrant the courts to interfere with

the award unless that unreasonableness has harmed the

public policy or fundamental policy of Indian law. It might

be a possibility that on re-appreciation of evidence, the

courts may take another view which may be even more

plausible but that also does not leave scope for the courts to

reappraise the evidence and arrive at a different view. This

court in Batliboi Environmental Engineers

Limited v. Hindustan Petroleum Corporation Limited held

that the arbitrator is generally considered as ultimate

master of quality and quantity of evidence. Even an award

which is based on little or no evidence would not be held to

be invalid on this score. At times, the decisions are taken by

the arbitrator acting on equity and such decisions can be

just and fair therefore award should not be overridden

O.M.P. (COMM) 9/2017 Page 16 of 42

under section 34 and 37 of the A&C Act on the ground that

the approach of the arbitrator was arbitrary or capricious.”

(Emphasis added)

37. A bare perusal of the paragraphs reproduced above show that under

the 1996 Act the Court does not sit in appeal over an Arbitral Award

or re-appreciates the evidence. The Court is not to reassess the factual

findings or substitute its own views with those arrived at by the

Arbitral Tribunal and can only set aside an Arbitral Award under the

limited grounds expressly provided in Section 34 of the 1996 Act or

when the Arbitral Award is contrary to terms of the contract or

provisions of the law.

38. Furthermore, in Ramesh Kumar Jain (supra), the Hon‟ble Supreme

Court also expounded what amounts to “patent illegality”, which is

one of the primary ground taken by the petitioner to set aside the

impugned Award, and observed as under:-

“34. Thereafter, this court elucidated the meaning of the

expression „patent illegality‟ in Ssangyong Engg. &

Construction Co. Ltd. v. NHAI while taking into

consideration the amendment act of 2015 and held it as a

glaring, evident illegality that goes to the root of the award.

This includes : (a) an award deciding matters outside the

scope of the arbitration (beyond the contract or

submission); (b) an award contradicting the substantive law

of India or the Arbitration Act itself; (c) an award against

O.M.P. (COMM) 9/2017 Page 17 of 42

the terms of the contract; and (d) an award so unreasoned

or irrational that it manifests an error on its face.

35. Considering the aforesaid precedents, in our considered

view, the said terminology of „patent illegality‟ indicates

more than one scenario such as the findings of the

arbitrator must shock the judicial conscience or the

arbitrator took into account matters he shouldn't have, or he

must have failed to take into account vital matters, leading

to an unjust result; or the decision is so irrational that no

fair or sensible person would have arrived at it given the

same facts.…….

36. ……It is a fundamental principle that the arbitrator

cannot award anything that is contrary to the contract. The

arbitrator is bound by clear stipulations inter se the parties,

and an award ignoring such stipulations would violate

public policy by undermining freedom of contract. However,

that does not mean that not every award which gives a

benefit not expressly mentioned in the contract is in

violation. The arbitral tribunal in exercise of their power

can very well interpret the implied terms or fill gaps where

the contract is silent, so long as doing so does not

contradict any express term. …… Similarly, if a contract

does not say either way about compensating extra work

done at request, the arbitrator can imply a term or use

principles of restitution to award a reasonable sum, without

O.M.P. (COMM) 9/2017 Page 18 of 42

violating the terms of contract. The thin line is whether an

express prohibition or restrictions in the contract is

breached by the award? If the answer is in affirmative, the

award is liable to struck down. However, where the contract

is simply silent on a legitimate claim which is inherently

linked to the natural corollary of contractual obligation of

the parties the arbitrator will be well within his powers to

interpret the contract in the light of principles of the

contractual jurisprudence and apply the equity to that

situation. A contrary interpretation would lead to opening a

floodgate whereby a party who may have dominant position

would intentionally not ink down the natural obligation

flowing from the contract and subsequently; after obtaining

the benefit the party would agitate absence of express terms

to sway away from even discharging his alternative

obligation of compensating the party at loss. Hence the

question which arises in such situations is, can the party

who bears the brunt and suffers the loss due to silence

under the contract regarding the natural contractual

obligation which arises in usual course of business be left in

limbo? In our view, that is the very purpose why

section 70 of the Contract Act, 1872, has been an intrinsic

part of our Contract Act. The said provision creates a

statutory right independent of contract, often

O.M.P. (COMM) 9/2017 Page 19 of 42

termed quantum meruit or unjust enrichment

remedy………”

39. With said principles in mind, I shall now proceed to consider the rival

contentions raised by both the parties.

40. Before proceeding further, it is pertinent to refer to the relevant

clauses from the Technical Specifications of the Contract. The same

are extracted below:-

“6.4 Excavation Lines and Tolerances

xxxxxxxx

ii) The pay line as shown on the drawings, is the line beyond

minimum excavation line, at which the payment for

excavation will be made, even if the actual excavation is

between the minimum excavation line and the pay line.

Unless specifically mentioned otherwise, the pay line for

tunnel shall be taken as 150 mm beyond the minimum

excavation line.

xxxxxxxx

vii) The Contractor is required to perform the excavation

works in such a way that the final excavation surface is

located between the pay line and the minimum excavation

line. No over-break or concrete beyond the pay line will be

measured for payment.

xxxxxxxx

6.5 Overbreak/Cavities

i) Excavation beyond the pay line is defined as over break.

O.M.P. (COMM) 9/2017 Page 20 of 42

ii) Cavity in underground excavation is defined as a locally

(not uniformly distributed along the section) originated over

break of large magnitude which is caused by occurrence of

adverse geological feature beyond control of Contractor

while each of the following four conditions are

simultaneously fulfilled:

(a) Cavity extends 2m beyond the pay line measured from

the deepest point of the cavity and its volume exceeds 5

cum.

(b) The cavity occurs above the invert of the tunnel or other

underground structures

(c) The Engineer is immediately informed and given an

opportunity for inspection while both the cause and the

extent of the cavity are clearly visible.

(d) It did not occur while, in the opinion of the Engineer, the

Contractor was using improper working methods or was

otherwise negligent, and could not have been prevented

by prompt and appropriate installation of supports.

(e) If for any reason excavation is carried out beyond the

payline the contractor shall remove the excess material

at no cost liability to SJVN.

(iii) The voids created by overbreak extending beyond the

minimum excavation line shall be filled-up alongwith final

concrete lining.

O.M.P. (COMM) 9/2017 Page 21 of 42

(v) If for any reason except at the location of cavity

excavation is carried out beyond the pay line the Contractor

shall remove the excess material and backfill the voids as

described above with M-10 concrete or alongwith final

concrete lining, at his own cost.

xxxxxxxx

6.19 Measurements and Payments

6.19.1 General

xxxxxxxx

ii) The Lump Sum and Unit Rates, if not specifically

stipulated otherwise, shall be deemed to include the entire

cost of, but not be limited to, the following:

xxxxxxxx

b) Provisions for and operation of the train traffic loading,

hauling and dumping the excavated material on stockpiles,

dumping areas or points of incorporation into Permanent

Works upto 1 km road distance from portal shaping and

trimming of the excavated materials in the dumping areas

as specified which Contractor shall have prepared

including providing of retaining/brest walls and wire crates,

clearing of the stockpile areas formation and maintenance

of stock piles, rehandling of suitable materials including

segregating, grading, draining and drying of materials

suitable for use in embankment construction or as backfill

O.M.P. (COMM) 9/2017 Page 22 of 42

(measurements and payments for providing retaining/breast

walls and wire crates shall be made separately).

xxxxxxxx

iii) Extra payment will be made for hauling the excavated

material beyond 1 km from the Portal. Measurement for

payment will be based on the in situ volume multiplied by

the actual distance in excess of 1 km. Payment for such

volume will be made at the Unit Rate entered in the Bill of

Quantities multiplied by actual distance in excess of 1 Km

from the portal.

6.19.2 Conventional Excavation of Tunnels

i) Measurement for payment for excavation will be of the in-

situ volume up to the pay line.

xxxxxxxx

6.19.3. Overbreak and Backfilling

(i) No payment will be made for removal of the material or

for backfilling with concrete or shotcrete or grout, for

excavation beyond the pay line except for cavities as defined

in these specifications.

xxxxxxxx

6.19.6 Measurement for payment or payment shall not be

made for the following

(a) Over-excavation/over-break (excluding cavity), removal

of material or backfilling with concrete, shotcrete or

grout beyond the pay line. This applies also to any

O.M.P. (COMM) 9/2017 Page 23 of 42

rectification Works resulting from incorrect surveys

and/or blasting.”

41. The Arbitral Tribunal have quantified the claim with reference to

BOQ items and clauses from Technical Specifications as under:-

“Preamble TO BOQ/ SCHEDULE OF QUANTITIES

42. The petitioner has challenged the Award granted in favour of the

respondent under Claim No. 4, more particularly Issue No. 5, by the

Tribunal. The primary dispute between the parties under the said issue

is whether the respondent is entitled to haulage of excavated materials

for every km beyond 1 km from the portal beyond the pay line?

43. The petitioner has challenged the Award under Claim No. 4, more

particularly Issue No. 5,on the ground that it is contrary terms of the

Technical Specifications of the Contract and the majority view have

misinterpreted the terms of the Technical Specifications of the

Contract. The petitioner has relied upon Clauses No. 6.4(vii),6.5(ii)(e),

O.M.P. (COMM) 9/2017 Page 24 of 42

6.5(ii)(a) and 6.5(iii) of the Technical Specification (reproduced

above) to contend that the measurement of overbreak for payment is

prohibited and the contractor i.e., the respondent was obliged to

remove the excavated material from overbreak at no extra cost. The

majority Tribunal after quoting and interpreting all the said clauses

from the Technical Specification, have dealt in depth with the said

contention of the petitioner and observed as under:-

“(8) The clause 6.4 (vii) stipulates that the Contractor is

required to perform excavation between the pay-line and the

minimum excavation line. Such condition can be adhered to

by the Contractor theoretically only in a favourable

geological set up. In case of weak rock strata (particularly

in Class-IV & V) over-breaks invariably take place due to

geological reasons on which contractor does not have any

control. The excess quantity of muck generated by such over

breaks are to be removed from face of the tunnel, hauled up

to the final disposal point and voids created by such over

break are to be back filled with concrete/ shotcrete.

Significant expenditure has to be incurred by the Contractor

on handling the excess muck generated by over-breaks and

on back filling of voids. On careful reading of all clauses of

Technical Specification and BOQ, it is observed that the

risk of excavation beyond pay-line i.e. over-breaks, removal

up to 1km lead from the portal and filling of such voids with

concrete is clearly put on the contractor. Accordingly, the

O.M.P. (COMM) 9/2017 Page 25 of 42

bidders were required to estimate the quantity of over-break

likely to occur and cover the same in their quoted rate for

excavation of tunnel. The question that is to be determined

under the present situation is whether the risk of hauling of

over-break material beyond 1km is also put on the

contractor or it is otherwise.

xxxxxxxx

(11) After careful consideration, we have come to the

conclusion that the specific clause of haulage beyond 1km

point should be interpreted not in isolation but taking care

of the following:

 ⁠it should not result in double payment

 ⁠It should not be in conflict with other provisions

 ⁠It should fit into overall context

 ⁠It should not result in unfair advantage or harm to

either party

(12) All general clauses pointed out by SJVNL pertain to

excavation of tunnel. The BOQ items for excavation of

tunnel by conventional means cover a range of works

including drilling, blasting with explosives, concreting, and

removal of excavated material etc. The payment criterion is

normative up to a predefined pay line and doesn't depend on

actual measurement except for cavity extending 2 m beyond

the pay line measured from the deepest point and its volume

exceeding 5 cum, which may be encountered during

O.M.P. (COMM) 9/2017 Page 26 of 42

excavation. The concept of normative payment based on pay

line incentivises due diligence by the contractor and

economizing by avoiding excessive excavation because the

same would have to filled back with concrete and without

any additional payment. Removal of all excavated material

up to the specified point is embedded in the composite BOQ

items for excavation of tunnel.

(13) As regards clause 6.19.1 (iv) pertaining to haulage

beyond 1km point, it is exclusively for haulage and the unit

rate is to be quoted in Rs Cum/km.

xxxxxxxx

(15) We feel the concept of normative basis of payment up to

pay line cannot be extended to transportation of excavated

material beyond 1 km. It has to be as per the specific

provision in this regard. The specific provision doesn't

stipulate that the payment for transportation beyond 1 km

from the portal would be restricted to the pay line concept

for excavation works of tunnel. On the other hand, it clearly

provides that measurement for payment will be based on the

in-situ volume multiplied by the actual distance in excess of

1 km.

(16) The terms of contract are very clear and there is no

ambiguity. Even if, there was to be any interpretation issue,

the rule of contra proferentum will apply. ……..”

44. I find no infirmity with the findings of the majority Tribunal. A bare

O.M.P. (COMM) 9/2017 Page 27 of 42

perusal of Clauses No. 6.4(vii), No. 6.5(ii)(e) and 6.5(ii)(a) of the

Technical Specification (reproduced above) show that overbreak

beyond payline is not be measured and the contractor i.e., the

respondent was responsible to remove the excavated material from

overbreak at no extra cost. However, the Technical Specification also

provides Clause No. 6.19.1(iii) (though as per the Arbitral Award it is

Clause No. 6.19.1(iv)) which in clear terms states that “extra payment

will be made for hauling the excavated material beyond 1 km from the

Portal” and the same cannot be ignored. The majority view is correct

to rely on Clause No. 6.19.1(iii) of the Technical Specification to hold

that the petitioner is liable to pay haulage beyond 1km. If the

interpretation sough to be given by the petitioner it to be accepted the

Clause No. 6.19.1(iii) of the Technical Specification will become

redundant.

45. The majority view observed that the contractor before bidding could

only estimate the quantity of over break that could occur in

performance of the contract, so as to cover the same in the quoted rate.

The same is within the terms of the Technical Specification and BOQ,

as the responsibility of excavation beyond payline i.e., removal up to

1km from the portal and filling of such voids with concrete is on the

contractor.

46. The majority view after considering the terms of the Contract relied

upon Clause No. 6.19.1(iii) of the Technical Specification (though as

per the Arbitral Award it is Clause No. 6.19.1(iv)) to hold that the

petitioner was liable to pay for haulage beyond 1 km. The view of the

O.M.P. (COMM) 9/2017 Page 28 of 42

majority was similar of that of the Dispute Board.

47. The said findings of the majority are both reasonable and plausible

and show due application of mind to the facts of matter, terms of the

Contract, and pleadings of the parties. As observed above, the Arbitral

Tribunal is the master on the construction of the terms of the contract

and unless, the same are found to be so perverse as to shock the

conscience of the Court, the Court under Section 34 of the 1996 Act

must refrain itself from interfering with the view of the Arbitral

Tribunal.

48. Further, the learned senior counsel for the petitioner has contended

that the fact that the petitioner paid the haulage in RA Bills 23 to 44

does not justify respondent‟s claim, and was an error, which was

rectified later by the petitioner. The said contention was also raised

before the Arbitral Tribunal and the majority Tribunal while dealing

with the same observed as under:-

“(17) The SJVNL by their own admission had been making

payment for haulage or transportation of excavated

material beyond 1KM based on actual quantity of excavated

material. When the matter was discussed in the half yearly

Contract review meeting held on 31.07.2009 SJVNL came to

the conclusion that the provisions of the contract are clear

and started making payment as per actual quantity. This

went on up to RA bill no 44 of June 2011 It was

subsequently stopped and the amount already paid, was

recovered from 45th RA bill paid in September, 2011

O.M.P. (COMM) 9/2017 Page 29 of 42

without providing any explanation to the contractor. The

conduct of the parties from July 2009 to September 2011 in

this particular case is important as the cross sections of the

tunnel were jointly observed and payment towards haulage

beyond 1 km was released to the contractor. ………

(18) The SJVNL has argued that it was a mistaken payment

which was later corrected. We don't think it was a mistake.

It was a correct interpretation. Payment of haulage beyond

1 km based on actual quantity is reasonable, not in conflict

with any other BOQ items, does not result in extra payment

and does not provide undue gain to the contractor. On the

other hand if transportation of actual excavated quantity is

sought to be restricted by applying the pay line concept

applied elsewhere, it would be unfair because-

- ⁠Such a scheme was not specified

- The contractor wasn't aware of such intent at the time of

quoting his rates

- ⁠Such intent was not indicated or clarified during the

tendering process”

49. Clearly, it is an admitted fact that the payment was made by the

petitioner for haulage from RA Bills 23 to 44. This further lends

credibility to the interpretation of the majority view that the terms of

the Contract mandated payment towards haulage beyond 1 km. The

majority view came to the conclusion that payment of haulage beyond

1 km based on actual quantity was reasonable and was neither

O.M.P. (COMM) 9/2017 Page 30 of 42

resulting in extra payment nor was in conflict with any other BOQ

items. Additionally, if the cost for transportation of actual excavated

quantity was not given the same would be unjust because the

contractor was unaware of the same at the time of bidding.

50. It is also the petitioner‟s contention that the majority Tribunal, after

reserving the Award, allowed the respondent to file additional

documents, to quantify its claim on haulage and produce cross section

drawings of the excavation and rejected the petitioner objection to the

same and instead directed the petitioner to reconcile the cross sections

provided by the respondent. The petitioner filed its reconciliation

report, wherein it stated that no quantification of overbreak quantity

was available with it. Hence, it is submitted by the learned senior

counsel for the petitioner that the majority Tribunal while allowing the

claim of the respondent wrongly relied upon the unverified cross

sections submitted by the respondent.

51. In this regard paragraphs No. 21 and 22 of the Issue No. 5 of the

Claim No. 4 of the Award are relevant and the same read as under:-

“(21) The Respondent in its written brief of oral

submissions (Document R-3) had stated that the excavated

cross sections of the tunnel are the Claimant own

submissions and the same are not the jointly measured

section and not verified by the site Engineers. The

Respondent further stated that the Claimant has not

submitted such cross-section during the excavation of the

work and at this stage, these sections were not verifiable.

O.M.P. (COMM) 9/2017 Page 31 of 42

However, subsequently (on 09.03.2016) the Claimant has

submitted jointly signed cross sections of the tunnels

(showing lines of excavation beyond the pay line), which

have not been contested by the respondents although they

have been adamant in refusing to reconcile the joint records

of actually excavated quantity on the ground that it would

tantamount to accepting the same as basis for payment for

haulage of in situ excavated material.

(22) However, the respondents have submitted jointly signed

papers indicating the actual quantity of excavated material

up to RA bill 30. In view of above it is clear that jointly

verified records of actual excavated cross sections are

available in original with the Respondent. Therefore, we

don't see any practical difficulties in agreeing to over break

quantities submitted by the Claimant for the purpose of

working out payment under cause 6.19.1 (iv) for haulage of

over break material as per the quoted BOQ rates.”

52. There is no infirmity in the said finding of the majority view. The

majority view has held that the petitioner has submitted jointly signed

papers indicating the actual quantity of excavated material up to RA

Bill 30, thereby, making it clear that jointly verified records of actual

excavated cross sections were available in original with the petitioner.

53. The findings of the majority is purely based on interpretation of the

terms and conditions of the Contract and evidences. As observed

above, the Arbitral Tribunal is the master of the quantity and quality

O.M.P. (COMM) 9/2017 Page 32 of 42

of evidence and the only exception to the said rule is when such

interpretation is so bizarre that is shocks the conscience of the Court

or is based on no evidence or beyond the scope of the contract, which

is not the case here in my considered opinion.

54. Additionally, I am also of the view that this Court lacks territorial

jurisdiction to entertain the present petition, however, the petition has

been pending in this Court for more than 8 years and it would be

unfair to relegate the parties to Court in the State of Himachal Pradesh

for adjudication on the merits of the case. The objective of arbitration

is speedy disposal and relegating the parties to the Court in the State

of Himachal Pradesh to re-agitate the issues on merits would be

antithesis to the objectives of the 1996 Act. Since, both the parties had

addressed arguments on the merits of the matter, dehors, the territorial

jurisdiction I first decided on the merits of the case.

55. The learned counsel for the respondent has challenged the jurisdiction

of this Court to adjudicate the present petition on the ground that the

Sub-Clause 1.4 of the Particular Conditions of the Contract provides

the Court in the State of Himachal Pradesh exclusive jurisdiction over

the matters arising out of the Contract and though the arbitration

clause being Clause No. 20.6 of the GCC provides three possible

“venue” i.e., Shimla, Delhi, or the Project Site (Rampur), however

these are solely for convenience and logistics and does not define

Delhi as the seat of arbitration. It is further submitted that the

Particular Conditions of the Contract supplements the General

Conditions and provides that, in case of conflict or inconsistency,

O.M.P. (COMM) 9/2017 Page 33 of 42

Particular Conditions of the Contract shall prevail.

56. The question that arises before me is whether this Court has the

jurisdiction to entertain the present petition. To determine this issue, it

is necessary to examine the legal position pertaining to the concepts of

“seat” and “venue” of arbitration, particularly in matters where “seat”

has not been specified, and the circumstances in which “venue”

becomes the “seat” of arbitration. The Hon‟ble Supreme Court in BGS

SGS SOMA (supra) has settled the law pertaining to “seat” and

“venue” of arbitration, more particularly in paragraph No. 82, which

reads as under:-

“82. On a conspectus of the aforesaid judgments, it may be

concluded that whenever there is the designation of a place

of arbitration in an arbitration clause as being the “venue”

of the arbitration proceedings, the expression “arbitration

proceedings” would make it clear that the “venue” is really

the “seat” of the arbitral proceedings, as the aforesaid

expression does not include just one or more individual or

particular hearing, but the arbitration proceedings as a

whole, including the making of an award at that place. This

language has to be contrasted with language such as

“tribunals are to meet or have witnesses, experts or the

parties” where only hearings are to take place in the

“venue”, which may lead to the conclusion, other things

being equal, that the venue so stated is not the “seat” of

arbitral proceedings, but only a convenient place of

O.M.P. (COMM) 9/2017 Page 34 of 42

meeting. Further, the fact that the arbitral proceedings

“shall be held” at a particular venue would also indicate

that the parties intended to anchor arbitral proceedings to a

particular place, signifying thereby, that that place is the

seat of the arbitral proceedings. This, coupled with there

being no other significant contrary indicia that the stated

venue is merely a “venue” and not the “seat” of the arbitral

proceedings, would then conclusively show that such a

clause designates a “seat” of the arbitral proceedings. In an

international context, if a supranational body of rules is to

govern the arbitration, this would further be an indicia that

“the venue”, so stated, would be the seat of the arbitral

proceedings. In a national context, this would be replaced

by the Arbitration Act, 1996 as applying to the “stated

venue”, which then becomes the “seat” for the purposes of

arbitration.”

57. A perusal of the paragraph reproduced above shows that the “venue”

of the arbitration is to be considered the “seat” of the arbitration in

absence of any “contrary indicia”. This ratio is rooted in the principle

of party autonomy i.e., when the parties chooses a place to conduct the

arbitration proceedings it shows parties‟ choice to provide the Courts

of that place with exclusive jurisdiction pertaining to anything

developing from the arbitration. However, the Hon‟ble Supreme Court

also provided an exception to the said rule i.e., any “contrary indicia”

which states that any other place is the seat of arbitration.

O.M.P. (COMM) 9/2017 Page 35 of 42

58. The Hon‟ble Supreme Court in Arif Azim Co. Ltd. v. Micromax

Informatics FZE

9

, has clarified the threefold test provided in BGS

SGS SOMA (supra) as to when “venue” becomes “seat” of the

arbitration as under:-

“58. Thus, this Court in BGS SGS SOMA [BGS SGS SOMA

JV v. NHPC, (2020) 4 SCC 234 : (2020) 2 SCC (Civ) 606]

laid down a three-condition test as to when “venue” can be

construed as “seat” of arbitration. The conditions that are

required to be fulfilled are as under:

(i) The arbitration agreement or clause in question

should designate or mention only one place;

(ii) Such place must have anchored the arbitral

proceedings i.e. the arbitral proceedings must have been

fixed to that place alone without any scope of change;

and

(iii) There must be no other significant contrary indicia

to show that the place designated is merely the venue and

not the seat.”

59. At this stage, it will be pertinent to examine the two clauses in the

Contract i.e., Sub-Clause 1.4 of Particular Conditions of the Contract

(reproduced above in paragraph No. 26), which is the exclusive

jurisdiction clause and other being the arbitration clause i.e., Clause

No. 20.6 of the GCC (reproduced above in paragraph No. 5). A bare

perusal of Clause No. 20.6 of the GCC shows that it is arbitration

9

(2025) 9 SCC 750.

O.M.P. (COMM) 9/2017 Page 36 of 42

clause of the Contract and its sub-clause (b) provides three possible

“venues” for arbitration namely, Delhi, Shimla or project site. Clearly,

the arbitration clause itself provides three choices of “venue” of the

arbitration and does not mention anything about the “seat” of the

arbitration. Whereas, Sub-Clause 1.4 of Particular Conditions of the

Contract provides exclusive jurisdiction to deal with matters arising

out of the Contract to the Court in the State of Himachal Pradesh.

60. The question that arises is whether applying principles of BGS SGS

SOMA (supra), as observed above, the three options of “venue” of

arbitration as provided in the arbitration clause can be considered as

“seat” of arbitration or does the Sub-Clause 1.4 of Particular

Conditions of the Contract works as the “contrary indicia”, as per

which the Court in the State of Himachal Pradesh will have exclusive

jurisdiction.

61. Clause No. 20.6 of the GCC is an agreement in itself between the

parties pertaining to arbitration and affirms parties‟ intention that

arbitration proceedings shall be held either in Delhi, Shimla or project

site. The parties by participating in the arbitration proceedings, which

were conducted and concluded in Delhi used their autonomy and

chose Delhi among the three options as the “venue” of the arbitration.

62. However, to my mind, in the present case it cannot be said that

“venue” of the arbitration is the “seat” of the arbitration. The parties

have not expressly specified one place to be the “venue” of the

arbitration, but instead, have provided for three different places as

“venue” of the arbitration for conducting the arbitral proceedings.

O.M.P. (COMM) 9/2017 Page 37 of 42

Hence, applying the first part of the threefold test as laid down in Arif

Azim (supra), the arbitration clause in question does not designate

only one place as the “venue”. The parties‟ decision to conduct the

arbitral proceedings in Delhi, as per Clause No 20.6(b) of the GCC, is

a mere choice of geographical location in view of the two other

venues and does not in any way confer supervisory jurisdiction upon

the Courts of either of the three locations. Rather, the stipulation of

multiple venues appears to have been made only for reasons of

convenience and logistics.

63. While, time and again, this Court and the Hon‟ble Supreme Court

have held that where an agreement contains two separate clauses for

jurisdiction, one being a general clause and the other specific to

arbitration, in such case, the specific arbitration clause shall prevail.

Most recently, in the judgment of Moonwalk Infra Projects (P) Ltd.

v. S.R Constructions

10

, while relying upon Reliance

Infrastructure v. Madhyanchal Vidyut Vitran Nigam Limited

11

and

Ravi Ranjan Developers Pvt. Ltd. (supra), I observed as under:-

“9. In the present case, the arbitration clause contained in

the Techno-Commercial Offer explicitly stipulates that the

venue of arbitration shall be Delhi. Hence, the seat of the

arbitration will also be Delhi. On the other hand, the

Purchase Order merely states in general terms that “all

subject to Begusarai jurisdiction” without any specific

10

2025 SCC OnLine Del 2797.

11

2023 SCC OnLine Del 4894.

O.M.P. (COMM) 9/2017 Page 38 of 42

reference to arbitration proceedings. In this regard, a co-

ordinate Bench of this Court in Reliance

Infrastructure v. Madhyanchal Vidyut Vitran Nigam

Limited, 2023 SCC OnLine Del 4894 while dealing

with Ravi Ranjan Developers (supra) has held that the

contract containing an arbitration clause specifying a clear

venue would confer that court with the supervisory

jurisdiction over the arbitral process. The same would

supersede a generic clause conferring jurisdiction on

another Court.

10. The operative portion reads as under:

“31. In Ravi Ranjan Developers (P) Ltd. v. Aditya Kumar

Chatterjee, the “arbitration clause” specified that the

sitting of the arbitral tribunal shall be held in Kolkata. In

the said decision the respondent himself approached the

District Court at Muzaffarpur, and not a Court in Kolkata

for interim protection under Section 9 of the Act. The

Supreme Court held that the respondent having himself

invoked the jurisdiction of the District Court at

Muzaffarpur, is estopped from contending that the parties

had agreed to confer exclusive jurisdiction to the

Calcutta High Court to the exclusion of other Courts. It

was further held that neither of the parties to the

agreement construed the arbitration clause to designate

Kolkata as the seat of arbitration. Therefore the petition

O.M.P. (COMM) 9/2017 Page 39 of 42

under Section 11 of Act, was held to be not maintainable

before the Calcutta High Court. The said decision is

completely distinguishable from the facts of the present

case.

32. On a conspectus of the aforesaid judgments, the

position of law that emerges is that when the contract

contains an arbitration clause that specifies a “venue”,

thereby anchoring the arbitral proceedings thereto, then

the said “venue” is really the “seat” of arbitration. In

such a situation the courts having supervisory

jurisdiction over the said “seat” shall exercise

supervisory jurisdiction over the arbitral process,

notwithstanding that the contract contains a clause

seeking to confer “exclusive jurisdiction” on a different

court.

33. In the present case, the relevant clause in the LOA

purporting to confer “exclusive jurisdiction” is a generic

clause, and does not specifically refer to arbitration

proceedings. For this reason, the same also does not

serve as a “contrary indicia” to suggest that that Delhi is

merely the “venue” and not the “seat” of Arbitration. As

such, the same cannot be construed or applied so as to

denude the jurisdiction of the Courts having jurisdiction

over the “seat” of Arbitration.””

(Emphasis added)

O.M.P. (COMM) 9/2017 Page 40 of 42

64. However, the present case stands on a different footing. The Clause

No. 20.6(b) of the GCC provides for multiple venues, which shows

that they were merely provided for the convenience of the parties and

not to designate the seat of arbitration, hence, cannot be construed as

conferring supervisory jurisdiction on the Courts at those places.

65. On the other hand, Sub-Clause 1.4 of Particular Conditions of the

Contract provides exclusive jurisdiction to the Court in the State of

Himachal Pradesh and hence, works as “contrary indicia” to the

arbitration clause. Additionally, the exclusive jurisdiction clause is

contained in the Particular Conditions, and the Application of the

Particular Conditions provides as under:-

“APPLICATION: The following Particular Conditions

shall supplement the General Conditions i.e., Section -VII of

Part-III of the bidding document. Whenever there is a

conflict or inconsistency, the provisions here-in-shall

prevail over those in the General Conditions.”

66. It cannot be ignored that the parties categorically agreed to give

overriding effect to the Particular Conditions of the Contract, which

contains the exclusive jurisdiction clause. Therefore, the Contract

clearly reflects contrary indicia, and the three “venues” cannot be

treated as the “seat” of arbitration thereof. Additionally, sub-clause 1.4

of Particular Conditions of the Contract also grants jurisdiction to the

Court in the State of Himachal Pradesh over matter arising out of the

Contract and hence the disputes under the Contract would be covered

under sub-clause 1.4 of Particular Conditions of the Contract.

O.M.P. (COMM) 9/2017 Page 41 of 42

67. Therefore, applying the ratio of BGS SGS SOMA (supra), the

“venue” of the arbitration as provided in the arbitration clause, will

not be the juridical seat of arbitration. Hence, this Courts does not

jurisdiction over the arbitral process and thereby, lacks the jurisdiction

to entertain the present petition.

68. Further, the judgment of Precitech Enclosure Systems (supra) and

Viva Infraventure Pvt. Ltd (supra) were based on particular facts of

their respective cases and their own arbitration clause. In the judgment

of Precitech Enclosure Systems (supra), the exclusive jurisdiction

clause specifically vested jurisdiction with the Courts at Rudrapur in

respect of “any question issue dispute or claim between the parties

including but not limited to any application to be made under the

Arbitration and Conciliation Act, 1996”. Similarly, in the judgment of

Viva Infraventure Pvt. Ltd (supra), the arbitration clause conferred

exclusive jurisdiction on the Courts at Gautam Budh Nagar, with no

reference to the seat of arbitration. In both the cases, the arbitration

clause itself provided clear seat of arbitration, at Courts at Rudrapur

and Courts at Gautam Budh Nagar, respectively. In these cases, the

arbitration clause did not provide for more than one option for

venue/seat of arbitration, as in the present case. Hence, these said

judgments are not applicable to the facts of the present case.

CONCLUSION

69. In view of the aforesaid discussion, I find no merit in the submissions

made by the learned senior counsel for the petitioner to set aside the

Award granted under Claim No. 4. The impugned portion of the

O.M.P. (COMM) 9/2017 Page 42 of 42

Award does not seems contrary to the terms of Contract or so

unreasonable that no prudent man could have arrived at. It is not in

contravention with the public policy of India or patently illegal.

70. Additionally, this Court does not have the territorial jurisdiction to

entertain the present petition. Consequently, the petition is dismissed,

along with pending applications, if any.

JASMEET SINGH, J

JANUARY 06

th

, 2026 / (HG)