The main legal point established is that the jurisdiction and place of arbitration should be determined based on the harmonized interpretation of relevant clauses in the contract documents, and the court has the authority to appoint an arbitrator if the respondent fails to do so.

VIBHU BAKHRU, J.

1. The petitioner has filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter “the Act”), inter alia, praying that an arbitrator be appointed to adjudicate the disputes that have arisen between the petitioner and the respondent (hereafter (“BHEL”).

2. The learned counsel appearing for BHEL did not dispute the existence of an arbitration agreement. She; however, contended that this Court does not have the jurisdiction to entertain the present petition as the arbitration is to be conducted in Bhopal, Madhya Pradesh.

3. Briefly stated, the relevant facts necessary to address the aforesaid controversy are as under:-

3.1 On 11.05.2007, BHEL issued a Notice Inviting Tender (NIT) for “civil works, erection, testing and commissioning of 220KV transmission line for loop in and loop out and augmentation of existing 220 KV Chandrapura switchyard including dismantling and handing over of all equipments (including dismantled equipments/materials) to principal employer / customer (Damodar Valley Corporation) as detailed in technical specification”. The tender documents comprised of (a) Conditions of Contract for Civil Work; (b) Conditions of Contract for Erection Work; and (c) Special Commercial Terms and Conditions.

3.2 The petitioner submitted its bid on 26.05.2007 in response to the afore-mentioned NIT. BHEL issued a Letter of Intent (LOI) on 23.06.2007 awarding the contract for execution of the subject works at a contract price of Rs.1,87,92,538/- (Rupees One Crore Eighty Seven Lakh Ninety Two Thousand Five Hundred Thirty Eight Only). The petitioner accepted the LOI by a letter dated 09.01.2008.

3.3 Thereafter, BHEL issued a Work Order bearing W.O. No.: TBSM/CHP/TL PACKAGE/WO/07-08 dated 16.01.2008 (hereafter “the Work Order”) awarding the works.

3.4 Simultaneously, the parties also entered into “the Contract Agreement” dated 16.01.2008 (hereafter “the Contract Agreement”). Admittedly, the subject works could not be completed within the specified time. The petitioner claims that this was on account of non-availability of materials and work fronts. Accordingly, the petitioner requested for extension of the contract period from time to time, which was granted by BHEL. The petitioner states that the works were finally completed on 31.12.2014 and BHEL issued the Completion Certificate certifying the same.

3.5 The petitioner, inter alia, claims that it is entitled to over-run charges on account of prolongation of the works. BHEL does not accept the said claim. This is at the core of the disputes between the parties.

3.6 In view of the disputes that are stated to have arisen between the parties, the petitioner sent a notice dated 30.01.2017 invoking the arbitration clause and called upon BHEL to appoint an independent arbitrator within 30 days thereof. BHEL by a letter dated 20.02.2017 declined the request made by the petitioner by stating that since the full and final certificate had been given by the petitioner without raising any contractual disputes, the request for appointment of an arbitrator was not tenable. This has led the petitioner to file the present petition.

4. Ms Gupta, the learned counsel appearing for BHEL contended that the arbitration agreement between the parties was contained in several documents, which collectively comprised the “contract” between the parties. She submitted that the terms of Clause 13 of the “Special Commercial Terms and Conditions” provides that the place/seat of arbitration should be at Bhopal and since the commercial terms stated therein override the standard clauses specified in the conditions of the contract, the arbitration is to be conducted in Bhopal. She referred to the decision in Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited and Ors.: (2017) 7 SCC 678 and on the strength of the said decision contended that since it is agreed that the place of arbitration is at Bhopal, the Courts in Madhya Pradesh