The main legal point established in the judgment is that the venue of arbitration shall be the place from which the contract is issued or such other place as the Arbitrator at his discretion may determine, and in the absence of a jurisdictional clause in the contract, the court with jurisdiction to entertain a petition under Section 11 of the Arbitration & Conciliation Act, 1996 is determined based on the location from which the contract was issued.

JUDGMENT

V. Kameswar Rao, J. (ORAL)

I.A. 9221/2022

Allowed, subject to just exceptions.

Application disposed of.

ARB.P. 697/2022

1. The present petition has been filed by the petitioner company under Section 11(6) of the Arbitration and Conciliation Act, 1996 ("Act of 1996") seeking appointment of a sole arbitrator in terms of the Contract No. 495 (530)/2008 dated September 10, 2008 ("Subject Contract") executed between the petitioner company and the respondent company, with the following prayers:

a) Pass an order under Section 11 (6) of the Arbitration & Conciliation Act, 1996 r/w Section 151 of The Civil Procedure Code, 1908 thereby appointing Arbitrator through the designated arbitral institutions or from the panel of arbitrators maintained by the Hon'ble Chief Justice for discharging the functions and duties of the arbitral institution in terms of the Arbitration and Conciliation Act, 1996 to adjudicate the dispute between the parties;

b) Pass an order, awarding the cost of the proceedings in favour of the Petitioner Company and against the Respondent Company; and

c) Pass such other further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

2. The petitioner, M/s Bygging India Ltd. is a company, incorporated on January 31, 1983, having its registered address at 1206-1210, 12th Floor Modi Tower (98, Hemkunt Tower) Nehru Place, New Delhi 110019. The petitioner company is a fully integrated specialised engineering construction company and pioneers of Slip form technology in India and specialises in concrete chimneys, concrete silos, pilling towers, bridge piers, cooling towers and other specialised tall structures.

3. The respondent company is M/s Bharat Heavy Electrical Limited, a Government of India enterprise, incorporated under the Companies Act, 1956, having its registered office at BHEL house, Siri Fort, New Delhi- 110049. It is engaged in the business of manufacture of power plant equipment and is one of the largest engineering and manufacturing companies of its kind in India engaged in the design, engineering, manufacture, construction, testing, commissioning and servicing of a wide range of products and services for core sectors of the economy, viz. Power, Transmission, Industry, Transportation (Railways), Renewable Energy & Gas, Water and Defence.

4. That on April 09, 2008, the respondent company invited bids for the Tender No. BHEL: NR (SCT): CHIMNEY: KOSTI: 495 for the construction of two 101 MTR high reinforced concrete twin fuel steel linked chimneys and four sets of induced draught reinforced concrete cooling towers, including supply of all materials except those proposed to be supplied by the respondent company for four 125 MW units at Kosti TPP, Sudan of M/S NEC, SUDAN ("Subject Project").

5. On April 12, 2008, the petitioner company submitted its offer vide Ref. No. BIL/B/SUDAN/10040801/2008 (Technical bid & Price bid) for the Subject Project which was accepted by the respondent company and accordingly received the Letter of Intent No. BHEL: NR (SCT): Chimney: Kosti: 495(530) dated June 10, 2008 ("LOI"). Thereafter, the petitioner company received a written order to commence the work vide letter dated July 10, 2008, and the work was commenced by the petitioner Company on August 14, 2008.

6. It is stated that the completion date of the work went beyond the stipulated period as per Clause 48 of the Special Conditions of Contract ("SCC"), and the respondent company was to issue Extension of Time ("EOT") as per Clause 44 of the General Conditions of Contract ("GCC") for the submission of final bills. In this regard Clause 44 of the Contract is reproduced as under -

"44.1 If in the opinion of the Engineer, the work is delayed

(a) by reason of abnormally bad weather; or

(b) by reason of serious loss or damage by fire; or

(c) by reason of civil commotion, local combination of workmen, strike, lockout, affecting any of the trades employed on the work,

or

(d) by delay