Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Bom) 930

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP V. MARNE, J.
Generic Engineering Construction and Projects Ltd. - Petitioner
Versus
Maharashtra Maritime Board - Respondent
Commercial Arbitration Petition No. 1070 of 2025 With Commercial Arbitration Application No. 675 of 2025
Decided On : 27-04-2026
Advocates Appeared :
For the Petitioner : Mr. Rohaan Cama with Mr. Chetan Shah, Ms. Farnaaz Karbhari, Mr. Rahul Jain and Mr. Sharan Shetty i/b HSA Advocates.
For the Respondent : Dr. Birendra Saraf, Senior Advocate with Mr. Jay Sanklecha, Mr. Harshvardhan Nankani, Mr. Ishwar Nankani, Mr. Huzefa Khokhawala and Mr. Kartik Gupta i/b Nankani & Associates.

For the Petitioners:Mr. Rohaan Cama, Mr. Chetan Shah, Ms. Farnaaz Karbhari, Mr. Rahul Jain, Mr. Sharan Shetty i/b HSA Advocates
For the Respondents: Dr. Birendra Saraf, Mr. Jay Sanklecha, Mr. Harshvardhan Nankani, Mr. Ishwar Nankani, Mr. Huzefa Khokhawala, Mr. Kartik Gupta i/b Nankani & Associates

Prima facie arbitration agreement via GCC clauses 24-25; termination disputes arbitrable sans appointed DRE or applicable pre-steps; court appoints arbitrator under s.11 despite departmental remedies.

Headnote:(A) Arbitration and Conciliation Act, 1996 - Sections 9, 11, 17, 21 - Appointment of arbitrator - Contract clauses 24 and 25 of General Conditions of Contract (GCC) provide for reference of disputes to Dispute Review Expert (DRE) and thereafter to arbitration per Special Conditions of Contract (SCC) - No DRE appointed jointly; notice seeking nomination ignored - Disputes including contract termination held arbitrable despite departmental appeal mechanisms in contractor's bid clause 36 and SCC clauses 3.4-3.6, as no conflict with GCC arbitration provisions and holistic reading reveals intent to arbitrate termination (deletion of SCC clause 3.3 supports arbitrability) - Decision by authority beyond appeal hierarchy renders pre-arbitration steps inapplicable - Court appoints sole arbitrator under Section 11, leaving objections open under Section 16 - Section 9 petition for interim measures converted to Section 17 application for tribunal decision. (Paras 17-35)

(B) Contract Interpretation - Documents priority per GCC clause 2.3 does not prevail where no conflict between bid conditions (internal appeals) and GCC arbitration clauses - SCC clause 3 relevant only for arbitration procedure, not existence of agreement - Conflicting clauses ignored in favor of clear arbitration intent to declog courts. (Paras 22, 29, 34)

Facts of the case:
Contractor awarded tender for construction project; work order and agreement executed with 24-month completion period. Disputes over delays in site handover, approvals, etc., led to show cause notice and termination order demanding recovery. Contractor sought DRE nomination (ignored), invoked arbitration; filed Section 11 for arbitrator appointment and Section 9 for stay of termination and re-tender.

Findings of Court:
Prima facie arbitration agreement exists; sole arbitrator appointed to adjudicate disputes from agreement; parties to share fees equally per rules; Section 9 converted to Section 17.

Issues: Existence and scope of arbitration agreement amid competing clauses (GCC 24-25 vs. bid 36, SCC 3); arbitrability of termination disputes; mandatory pre-arbitration DRE/departmental appeals; effect of document priority and deleted SCC clauses.

Ratio Decidendi: Holistic contract reading establishes arbitration agreement; absence of DRE and inapplicable appeals (decision beyond hierarchy) permit direct reference; courts favor arbitration over inconsistent clauses.

Result: Section 11 application allowed; sole arbitrator appointed; Section 9 petition converted and disposed.

Table of Content
1. construction contract disputes lead to termination. (Para 1 , 2 , 3 , 4 , 5)
2. petitioner asserts valid arbitration agreement. (Para 6 , 7 , 8 , 9 , 10)
3. respondent denies arbitration; prioritizes bid remedies. (Para 11 , 12 , 13)
4. court prioritizes section 11 application. (Para 14 , 15 , 16 , 17)
5. reproduction of key contract dispute clauses. (Para 18 , 19 , 20 , 21)
6. no conflict; bid clause yields to arbitration. (Para 22)
7. no appointed dispute review expert exists. (Para 23 , 24 , 25)
8. termination decision by ceo is arbitrable. (Para 26 , 27 , 28)
9. scc deletion affirms gcc arbitration. (Para 29 , 30)
10. holistic reading favors arbitration agreement. (Para 31 , 32 , 33 , 34 , 35)
11. sole arbitrator appointed; section 9 converted. (Para 36 , 37 , 38 , 39 , 40)

JUDGMENT :

1) Commercial Arbitration Application No. 675 of 2025 is filed under Section 11 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) seeking appointment of Arbitrator for adjudication of disputes and differences between the parties, which have arisen out of Work Order dated 25 January 2023 and Agreement dated 6 February 2023 in relation to construction of office building on Plot No. C-47, Block G in Bandra Kurla Complex, Mumbai. Commercial Arbitration Petition No.1070 of 2025 is filed under Section 9 of the Arbitration Act for seeking interim measures.

2) Petitioner is engaged in the business inter-alia of civil construction projects. The Respondent/Maharashtra Maritime Board (MMB) floated tenders inviting online bids for construction of its office building on Plot No. C-47, Block G, at Bandra Kurla Complex (BKC), Mumbai, at estimated work value of Rs.68,18,50,446/-. The Petitioner participated in the tender process and was declared as a successful bidder. The Respondent issued Letter of Intent dated 30 September 2022 in favour of the Petitioner. Thereafter Work Order dated 25 January 2023 was issued and Agreement dated 6 February 2023 was executed between the Petitioner and Respondent. In terms of the Work Order and the Agreement, the duration of project was 24 months. Since the work commenced in February 2023 the same was supposed to be completed by February 2025. According to the Petitioner, certain disputes arose between the parties relating to site handover and commencement, delayed removal of previous contractor’s material, delayed provision of necessary drawings/approvals, issues relating to obtaining statutory approvals and commencement certification and stop work notice from statutory authority, delays in the issuance of various permissions and NOCs and request for extension of time. The Respondent issued show cause notice dated 28 July 2025 to the Petitioner alleging breaches of the Agreement and calling it upon to explain as to why the contract should not be terminated. The Petitioner submitted reply dated 3 August 2025. The Respondent issued order dated 18 August 2025 terminating the Work Order and the Agreement.

3) The Petitioner invoked Clause 25 of Section 3 of Conditions of Contract and suggested a name to be appointed as Dispute Review Expert. However, the Respondent did not respond to the requisition sent by the Petitioner. The Petitioner accordingly issued notice dated 11 September 2025 under Section 21 of the Arbitration Act suggesting the name of the Arbitrator.

4) The Petitioner filed Commercial Arbitration Petition No.1070 of 2025 under Section 9 of the Arbitration Act, seeking stay of termination order dated 18 August 2025. The Respondent issued fresh e-tender dated 9 October 2025 for completion of the project. The Petitioner accordingly amended Section 9 Petition and sought stay in respect of fresh e-tender dated 9 October 2025. The Respondent issued Work Order dated 20 January 2026 to Akshaya Infra Projects Pvt. Ltd. and ShrijiKrupa Projects Ltd. (JV) for completion of the balance work.

5) In the meantime, the Petitioner has filed Commercial Arbitration Application No.675 of 2025 for appointment of Arbi

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2026 Supreme(Bom) 930

Prima facie arbitration agreement via GCC clauses 24-25; termination disputes arbitrable sans appointed DRE or applicable pre-steps; court appoints arbitrator under s.11 despite departmental remedies.

Cases Referred (1)