The main legal point established in the judgment is that a party's agreement to forego a claim can render the claim non-arbitrable and may lead to the rejection of a civil suit for lack of cause of action.

JUDGMENT :

Mukta Gupta, J.

I.A.10585/2017 (u/O 7 R 11 CPC by D)

1. Plaintiff has filed the present suit claiming that it is a consortium of M/S JSC OGCC Kazstroyservices (KSS) as the leader and M/S Kazstroyservices Infrastructure India Pvt. Ltd. as its member. It is the case of the plaintiff that Engineers India Limited, a project management consultant and a Government of India undertaking, was appointed by the defendant as the Engineer in-charge of the project in question i.e. an approximately 1000 km long pipeline project for transportation and distribution of RLNG from Dabhol in the State of Maharashtra to Bidadi in the State of Karnataka by the defendant. The said tender was floated in June 2010 and the entire work of tender was divided into 10 Spreads 'A' to 'J'. The pipeline was to traverse via 18 National Highways, 382 roads, 20 railway tracks, 11 major rivers and 276 water bodies. The plaintiff participated in the tender and the defendant issued two separate faxes for acceptance both dated 6th October, 2010 based on the rates quoted by the plaintiff for Spread 'D' and Spread 'J respectively. On 30th December, 2010 the plaintiff sent to the defendant duly signed and executed contract agreement dated 30th December, 2010 independently for Spread 'D' and Spread 'J'.

2. That during the course of execution of work, certain issues were raised by the plaintiff claiming various amounts from the defendant which were refuted. The claims, inter alia, related to extra expenditure incurred by the plaintiff during the extended period of contract beyond 5th February, 2012, the originally stipulated date of completion of project both for Spread 'D' and 'J'. The plaintiff filed a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 before the Hon'ble Supreme Court and the two petitions being Arbitration (Civil) No. 36/2014 and 38/2014 were decided by a common order dated 12th February, 2015. It is the case of the plaintiff that in so far as disputes/ claims related to the period beyond 5th February, 2012 (i.e. extended stay beyond the contractual period), the Supreme Court held that the same was not an arbitral dispute under the terms and conditions of the contract and therefore could not be referred to arbitration. Hence, the plaintiff filed the present suit limited to its claim on account of various costs, expenses, losses and damages incurred by it during the aforesaid extended stay beyond the contractual period only.

3. By this application under Order VII Rule 11 CPC case of the defendant is that the two petitions before the Supreme Court clearly dealt with the issue and in view of the fact that the plaintiff in its tender documents had not claimed any amount for the extended stay beyond the contractual period noting 'NIL' in the said column, the Supreme Court held that in view of the no claim of the plaintiff on that count, the said purported dispute could not be referred to arbitration. Hence the present suit is not maintainable. To support his arguments that there being no dispute, the suit is liable to be dismissed for want of cause of action, learned counsel for the defendant relies upon the decision of the Supreme Court dated 12th February, 2015 as also the decision reported as Fateh Chand Vs. Balkishan Dass, (1963) AIR SC 1405 to claim that the plaintiff cannot even claim compensation under Section 74 of the Contract Act.

4. Learned counsel for the defendant also contends that the claim of the plaintiff that the decision of the Supreme Court dated 12th February, 2015 has no application to the present suit deserves to be rejected for the reason the plaintiff himself states that the cause of action finally arose when the Supreme Court passed the order dated 12th February, 2015. In case the passing of the order by the Hon'ble Supreme Court does not give rise to a cause of action, the present suit filed by t