IMPORTANT POINT
There is a difference between reference to another document in a contract and incorporation of another document in a contract, by reference.

JUDGMENT :

A.K. Sikri, J.

1. Leave granted.

2. National Highway Authority of India (NHAI) had entered into agreement dated July 19, 2007 (hereinafter referred to as the ‘Concession Agreement’) whereby it had awarded a contract to M/s. T.K. Toll Road Pvt. Ltd. (hereinafter referred to as the ‘Concessionaire’) for undertaking, inter-alia, the design, engineering, financing, procurement, construction, operation and maintenance of the Project Highway on Build Operate and Transfer (BOT) basis on the National Highway 67 connecting Coimbatore and Nagapattinam. The Concessionaire vide EPC agreement (Engineering, Procurement and Construction Agreement) dated January 31, 2008 awarded the said work on a fixed lump sum turnkey basis to M/s. Utility Energytech and Engineers Private Limited (hereinafter referred to as the ‘EPC Contractor’). EPC Contractor, in turn, executed a Construction Agreement dated March 14, 2008 with the respondent herein (M/s. Techtrans Construction India Pvt. Ltd.) to execute the works as per terms and conditions entailed in that agreement. Clause 8 of that agreement permitted the respondent to sub-contract the structural work. Pursuant thereto, the respondent floated a tender for sub-contracting their work in which the appellant also submitted its bid and was ultimately awarded the said work by the respondent vide agreement dated July 29, 2009.

3. Some disputes arose between the appellant and the respondent in connection with the execution of the said work and the appellant vide its letter dated March 25, 2013 raised certain claims against the respondent. The appellant also filed Original Petition under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) on the file of Principal Judge, Karur. This petition was contested by the respondent who in its reply denied all the allegations raised by the appellant and also submitted that since there was no arbitration agreement between the parties, the petition under Section 9 of the Act was not maintainable. While this was pending, the appellant moved application under Section 11(3) and (5) of the Act for appointment of an arbitrator in the High Court of Judicature at Madras on January 28, 2014. Notice in this petition was issued by the High Court. In the meantime, on June 30, 2014, the Principal Judge, Karur allowed the petition of the appellant under Section 9 of the Act, but left open the issue of existence of arbitration agreement.

4. Insofar as the appellant’s petition under Section 11 of the Act is concerned, it was contested by the respondent taking the objection to the maintainability of the petition on the ground of absence of any agreement. The High Court has vide impugned orders dated September 18, 2015 dismissed the said petition of the appellant upholding the contention of the respondent that there is no arbitration agreement between the parties and, therefore, remedy under the Act for appointment of arbitrator or constitution of Arbitral Tribunal is not available.

5. It may be clarified at this juncture that Agreement dated July 29, entered into between the appellant and the respondent does not contain any arbitration clause. There is no independent arbitration agreement between the parties either. However, case set up by the appellant was that this Agreement dated July 29, 2009 entered into between the parties, by implication, incorporates the arbitration agreement that is contained in the Agreement dated March 14, 2008 that was entered into between the EPC Contractor and the respondent.

6. Indubitably, clause 45 of the Agreement dated March 14, 2008 between EPC Contractor and the respondent contains procedure for resolution of disputes and sub-clause (3) thereof refers to arbitration procedure. In case of any dispute, as per clause 45.1, first attempt is for amicable resolution. Thereafter, under clause 45.2, process of ‘mediation’ is to be resorted to and if that also fails then the ‘arbitration procedure’ is provided. C