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IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 2^nd June 2023

+

O.M.P.(COMM) 190/2019

B.L. KASHYAP AND SONS LTD.

..... Petitioner

Through:

Mr.

Ashish

Dholakia,

Senior

Advocate with Mr. Gautam Bajaj, Mr.

Akash Panwar, Mr. Rohan Chawla &

Mr. Arpit Singh, Advocates.

[M:-9899655157]

versus

MIST AVENUE PRIVATE LTD.

..... Respondents

Through:

Mr. Anil Kr. Airi, Senior Advocate

with Mr. Ravi Krishan Chandna, Ms.

Sadhana Sharma, Mr. Mudit Ruhella

& Mr. Aman Dahiya, Advocates.

%

CORAM:

HON’BLE MR. JUSTICE PRATEEK JALAN

J U D G M E N T

1.

By way of the present petition under Section 34 of the

Arbitration and Conciliation Act, 1996 [hereinafter, “the Act”], the

petitioner seeks setting aside of an award dated 07.01.2019, rendered

by a learned sole arbitrator in disputes raised by the petitioner under

Digitally Signed

By:SHITU NAGPAL

Signing Date:03.06.2023

21:36:05

Signature Not Verified

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an undated Construction Contract entered into between the parties in

August, 2014¹[hereinafter, “the 2014 Contract”].

Facts

2.

The 2014 Contract was for civil and structural works for a

project known as “MIST” situated in Sector 143B, Noida, Uttar

Pradesh. The estimated value of the contract was approximately ₹229

crores, which was to be executed on a Bill of Quantities [hereinafter,

“BOQ”]/item rate basis. It contained an arbitration clause [Clause 20],

which reads as follows:-

replaced, substituted or re-numbered from time to time.”

3.

It appears that certain disputes arose between the parties, which

were resolved mutually, and the terms recorded in a Memorandum of

Understanding

dated

08.10.2015

[hereinafter,

“the

MoU”].

Admittedly, the MoU does not contain an arbitration clause at all. The

central dispute between the parties is as to whether the arbitration

agreement contained in the 2014 Contract survived the execution of

the MoU.

1 The copy of the agreement placed on record states that it was executed in August 2014, but the

pleadings and the impugned award give the date as November, 2014.

Digitally Signed

By:SHITU NAGPAL

Signing Date:03.06.2023

21:36:05

Signature Not Verified

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4.

The learned arbitrator has come to the conclusion that the MoU

constitutes novation of the 2014 Contract and the tribunal does not

have the jurisdiction to entertain disputes under the arbitration clause

contained in the 2014 Contract.

5.

As the question in the present petition turns upon the contents of

the MoU, the relevant clauses thereof are reproduced below:-

“WHEREAS by the virtue of the construction agreement executed

at Plot no. 1, Sector 143B Nodia, UP as "Work Site" Or "Project”

WHEREAS during the construction of the work awarded by the 2^nd

2015 and decided to record the minutes of meeting and to cancel

the above said "construction agreement" executed between them.

1. The "Construction Agreement" between the parties will stand

fully satisfied towards both the parties upon the contractor

handing over all the assets and consumables as listed in the

enclosed list except Batching Plants, Crane, other small

machines but limited to enclosed list and Mist Avenue (P) Ltd.,

paying the final settled dues under the said contract as per agreed

schedule mentioned herein under:

Digitally Signed

By:SHITU NAGPAL

Signing Date:03.06.2023

21:36:05

Signature Not Verified

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A) Total dues towards contract payable by "Mist" the 2^nd Party

settled at Rs. 132 lacs on full and final basis towards 1^st party

B The above amount to be paid as per following schedule by the 2^nd

(i) Rs. 17,00,000/- (Rupees Seventeen Lacs) on or before 10^th

C)The 1^st Party i.e. BLK will have no dues upon receiving Rs. 132

lacs, provided all payments are paid in the agreed time frame, any

default in the payment terms as agreed upon for the closed

contract and 1st Party i.e. BLK shall be paid all dues, losses etc

for the closed contract eligible on demand faili