The consent to arbitrate can waive mandatory pre-arbitration formalities, allowing disputes from separate contracts to be arbitrated as a composite matter.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The present application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the 1996 Act”) has been filed for a composite reference in respect of six letters of award of contract issued by the respondent in favour of the petitioner pursuant to a tender floated by the respondent for construction of various electrical transformers and allied projects. The petitioner turned out successful in the tender and was awarded the six letters of award on different dates being May 26, 2016, August 26, 2016 and April 6, 2018.

2. The several letters of award pertained to supply of materials and equipment and installation, erection and construction of various transformers bay and feeder bay at different places in West Bengal.

3. Formal contracts were executed by and between the parties in terms of the letters of award on four different dates. As per the contracts, the parties were to be governed by the General Conditions of Contract (GCC) and Special Conditions of Contract (SCC).

4. Subsequently, the petitioner wrote to the respondent requesting enhancement of the existing contract amount on account of GST implementation. Several other letters were also written by the petitioner to the respondent, inter alia for enhancement of the contract amount and/or requesting waiver of liquidated damages, etc. The several representations of the petitioner having not been considered by the respondent, the petitioner filed a writ petition bearing WP No.5239(W) of 2020, which was decided on January 5, 2021 by directing the respondent to consider the said representations and pass a reasoned order.

5. On April 16, 2021, the respondent passed a reasoned order refusing the claims of the petitioner, upon which the petitioner filed another writ petition bearing WPA No.16876 of 2021 challenging the said reasoned order. The said writ petition is still pending and the petitioner undertakes to withdraw the same if the present application is allowed.

6. The petitioner, by a letter dated February 20, 2023, purportedly appointed an Adjudicator under Clause 6 of the GCC. The said appointment, however, was unilateral. The Adjudicator passed an award on March 27, 2023, upon which the respondent filed an application under Section 34 of the 1996 Act, giving rise to AP No.193 of 2023, for setting aside the Adjudicator’s award dated March 27, 2023.

7. A co-ordinate Bench of this Court, by an order dated June 26, 2023, observed that the challenge did not fit into the contours of an application under Section 34. The premise of the said conclusion was that the impugned order had not been passed by an Arbitrator but by an Adjudicator, which was recorded to be an admitted position of the parties before the Court.

8. Subsequently, the petitioner preferred a writ petition being WPA No.27644 of 2023, seeking implementation of the award of the Adjudicator. The said writ petition came up for hearing before another co-ordinate Bench on May 21, 2024. It was recorded by the learned Single Judge that at the outset, learned counsel for the petitioners stated that he was not pressing the writ petition and would take his remedies in accordance with the GCC Clause 6.2.3. It was also recorded that learned counsel for the respondents stated that he had no objection if the present dispute is referred to arbitration in terms of Clause 6.2.3.

9. The learned Single Judge held that in view of the statement made by the learned counsel for the petitioners, the writ petition was dismissed as withdrawn.

10. The petitioner thereafter issued a notice invoking the arbitration clause on May 22, 2024, requesting the appointment of an Arbitrator from the options given in the said invocation notice. The respondent replied to the said notice by an e-mail dated June 26, 2024, raising objections, inter alia, to one of the names suggested by the petitioner and insisting upon compliance of the pre-arbitration stages in terms of Clause 6 of the GC