The Delhi High Court has ruled that in view of the principle of 'when in doubt, do refer', as enunciated by the Supreme Court, if there is an arbitration agreement between the parties, which is sought to be negated by a party by citing other provisions of a contract, which requires interpretation of the contract, the Court must lean towards referring the matter to arbitration.

The petitioner Shristi Infrastructure Development Corporation Ltd. entered into an agreement with the respondent Ircon International Limited. After certain disputes arose between the parties, the petitioner invoked the arbitration clause contained in the General Conditions of Contract and filed a petition before the Delhi High Court under Section 11 of the Arbitration & Conciliation Act, 1996 seeking appointment of an arbitrator.

The respondent Ircon International submitted that the parties had signed the Special Conditions of Contract (SCCs), and that as per the relevant clause contained in the SCCs, if any of the conditions contained in the SCCs conflict with or are inconsistent with any of the General Conditions of Contract (GCCs), the special conditions shall prevail.

The respondent averred that the SCCs contain a dispute settlement clause providing for amicable settlement of disputes between the parties through mutual discussions, negotiations and deliberations.

The respondent added that the dispute settlement clause contained in the SCCs specifically provided that it superseded the relevant clause contained in the GCCs, i.e., Clause 72, which comprised the dispute settlement clause as well as an arbitration agreement, as comprised in Clause 72.2. Hence, the respondent averred that since the arbitration agreement was incorporated in the said relevant clause contained in the GCCs, therefore, the arbitration agreement between the parties was superseded by the SCCs.

The Court observed that though the Special Conditions of Contract (SCCs) gave an overriding effect to the Special Conditions of Contract over the General Conditions of Contract (GCCs), such an effect was only restricted to the extent there was a conflict or inconsistency between the two provisions. The Court added that there was no evident conflict or inconsistency between the arbitration clause comprised in the General Conditions of Contract and any other provision contained in the Special Conditions of Contract.

The Court ruled that the question whether the dispute settlement clause contained in the SCCs overrides only the relevant clause contained in the GCCs, or also the specific arbitration agreement contained in the GCCs, requires a detailed interpretation of the provisions of the contract, which cannot be decided by the Court in the proceedings initiated under Section 11.

The High Court observed that the Apex Court in Intercontinental Hotels Group (India) Pvt. Ltd. & Anr. versus Waterline Hotels Pvt. Ltd. (2022) had relied upon the supplementary opinion rendered by the Chief Justice of India N.V. Ramana in Vidya Drolia & Ors. versus Durga Trading Corporation (2020), to the effect that- if the validity of the arbitration agreement cannot be determined on a prima facie basis, the Court should refer a matter to arbitration, i.e., 'when in doubt, do refer'.

Ruling that the arbitration agreement embedded in a contract is always considered a separate and severable clause, the supersession of which must not be lightly inferred, the High Court held that in consonance with the overarching principle of 'when in doubt, do refer', if there is an arbitration agreement between the parties, which is sought to be negated by a party by citing other provisions of a contract, which requires interpretation of the contract, the Courts must lean towards referring the matter to arbitration.

The High Court added that even after the matter has been referred to arbitration, the arbitrator must be free to decide on his or her own jurisdiction, including the existence of the arbitration agreement, under Section 16 of the Arbitration & Conciliation Act.

The Court, thus appointed a Sole Arbitrator and referred the parties to arbitration.

By - George Thomas