The arbitration agreement is separate and severable from the underlying contract, and the Arbitral Tribunal has the competence to rule on its own jurisdiction, including the existence or validity of the arbitration agreement.

JUDGMENT

Chandra Dhari Singh, J.

1. The instant petition has been filed by the Petitioner seeking the appointment of an independent Arbitral Tribunal under Section 11(6) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the Act"), and has inter-alia prayed for the following reliefs:

"(a) Appoint the Arbitral Tribunal under Section 11(6) of the Arbitration and Conciliation Act, 1996 to adjudicate disputes between the Petitioner and Respondent; and

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

FACTUAL MATRIX

2. The Petitioner is a firm engaged in civil contracting, land & property development, and real estate sectors. The Respondent is a Centre-State Joint Venture responsible for operating the Delhi Metro and the scope of its work involves planning and implementation of metro rail, monorail, and high-speed rail projects in India and abroad.

3. The Petitioner, on 08.09.2015, submitted its bid for Contract CC- 95, pertaining to the construction of the viaduct, and roof portal along with finishing the work for the automatic walkaway/travelators at Dhaula Kuan and Rajouri Garden Interchange Stations of Line-7, Phase III of the Delhi MTRS.

4. Subsequently, in pursuance of the submitted bid, the Respondent on 11.01.2016 issued a Letter of Acceptance (hereinafter referred to as the "LOA") to the Petitioner for the said contract at a total cost of Rs. 55,07,87,249/-. Furthermore, the LOA stipulated the timeline for the competition of the work which was 15 months commencing from 1st February 2016.

5. The Petitioner's contention is that the Respondent had added extra work and had changed the scope of work provided for by the contract, and the same was undertaken by them on the Respondent's assurance that due payments will be made for the extra work. The Petitioner further submits that while it had duly executed all the work and raised timely bills, the same was not honoured by the Respondents, despite their prior understanding on the same.

6. The Petitioner invoked arbitration by its notice dated 09.06.2022 whereby the Petitioner had inter alia sought the payment of claim amount of Rs. 55,50,91,763.36 including interest for the extra items/extra work done by the Petitioner and has accordingly, sought to refer the dispute to arbitration. However, the Respondent rejected the same on the ground that the Petitioner's notice had exceeded the prescribed time limit under Clause 17.4 of the GCC.

7. The Respondent further stated in its notice that the Petitioner had submitted the No Claims Declaration dated 19.03.2021, as per which once the final payment under the contract is released, then the contractual agreement including the arbitration clause would be instantly discharged and rescinded. However, it is contested by the Petitioner that the No Claims Declaration had been obtained by the Respondent under economic duress and coercion by refusing to release any payment which was due to the Petitioner, and thus, the No Claim Declaration should be rejected by the court.

8. The Petitioner has preferred this instant petition under Section 11(6) of the Act pertaining to the dispute regarding extra work that was assigned to the Petitioner.

SUBMISSIONS

(ON BEHALF OF THE PETITIONER)

9. Learned counsel appearing on behalf of the Petitioner submitted that the Respondent had added extra work items and had changed the scope of the work from time to time, and the Petitioner duly completed the extra work on the Respondent's assurance that they will make due payments for the same. It is submitted that the Petitioner had executed the extra work and had apprised the Respondent and raised bills for the extra work in a timely manner, however the same was not honoured by the Respondent and hence a due amount of Rs.55,50,91,763.36 has arisen.

10. It is further submitted that the Respondents were intentionally avoiding the same to unjustly enrichen themselves