PRATHIBA M. SINGH, J.

1. The Plaintiff has filed the present suit for recovery of a sum of Rs. 2,59,95,243/- along with interest against the Principal, Kirorimal College Defendant no.1 and its Chairman Secretary, The Management/Governing Body of Kirorimal College Defendant no.2.

2. No relief is pressed for against Defendant no.3 Vice Chancellor, Delhi University. Accordingly, Defendant No.3 is deleted from the array of parties.

3. A tender was floated by Kirorimal College, University of Delhi, for construction and renovation of the second floor at the college campus vide letter dated 13th January, 2009. Pursuant to the said letter, agreement dated 14th January, 2009 was entered into between the parties, which contains the following clauses:-

"9. Apart from the agreement, terms and conditions mentioned in the bidding document and General Conditions of Contract for Central P.W.D. Works 2008 are also part of the agreement.

10. All disputes arising out of or in any way connected with this Agreement shall be deemed to have arisen in Delhi and only the court in Delhi shall have jurisdiction to determine the same."

4. The work was to be completed by 19th January, 2010. However, there was some delay and finally the work was completed on 31st July, 2010, as per the Plaintiff. According to the contractor, it was entitled to various claims towards extra works, escalation and also refund of the security deposit which was, however, not acceded to by Defendant No.1. Hence the present suit. Initially the plaint was filed in 2014 however, thereafter some amendments were sought in the plaint. Vide order dated 6th December, 2018, the amendments were allowed and the amended written statement was directed to be filed within 30 days.

5. Defendant Nos. 1 and 2, vide the amended written statement, have raised an objection that there is an arbitration clause in the contract in view of the General Conditions of Contract for Central P.W.D. Works 2008. The Defendants have also moved an application under Section 8 of the Arbitration and Conciliation Act, 1996. The said IA was listed on 15th April, 2019. The plaintiff was directed to file its reply, however, no reply was filed and the matter was listed today. Ld. counsel for the Defendant had pointed out to the Court the various clauses, beginning with the tender. The counsel for the Defendant has pointed out that Clause 25 of the GCC which clearly provides for reference of suit arbitration. Learned counsel for the Defendants, submits that the averment in the plaint in paragraph 8A shows that the Plaintiff has itself relied upon the GCC. As per the GCC, the Chief Engineer is the appointing authority. However, the Plaintiff has also agreed in paragraph 8A that the powers of the Engineer are to be exercised by the Principal, Kirorimal College, University of Delhi, which was the employer. In any event, he submits that his client has no objection if an independent Arbitrator is appointed.

6. Mr. Peeyoosh Kalra, Ld. counsel for the Plaintiff submits that the objection as to the existence of the arbitration clause was not taken in the initial written statement which the Defendant Nos.1 and 2 had filed before this Court. Thus, the Defendants have waived the arbitration clause since the first statement of defence has already been filed. He further submits that the amendment cannot give a new right to the Defendant to rely on the arbitration clause as the amendment was limited to the extent of adding an amount which was missed out and nothing more.

7. It is a matter of fact that the plaint was amended and the amendment application was allowed on 6th December, 2018. The Defendant Nos. 1 and 2 have not taken objections as to the arbitration clause in the amended written statement. Once an amendment is allowed, the amendment relates back to the date of filing of the suit and so the filing of the written statement would relate back to the initial stage. In any event, the amendment in respect of an amount of Rs.81,71,