$~57 * IN THE HIGH COURT OF DELHI AT NEW DELHI + ARB.P. 851/2023 SIMPLEX INFRASTRUCTURES LIMITED .....Petitioner Through: Mr. Jayant Mehta, Sr. Adv. with Mr. Aayush Agarwala, Mr. Samrat Sengupta and Mr. Parag Chaturvedi, Advs.

versus INDIAN OIL CORPORATION LIMITED .....Respondent Through: Mr. V.N. Koura, Ms. Paramjeet Benipal and Mr. Sumit Benipal, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT (ORAL)

% 03.09.2024

1. The petitioner and the respondent entered into a Contract Agreement dated 27 July 2017 for various civil works at Haldia Refinery.

2. Clause 9.0.0.0 and its sub clauses of the contract envisaged resolution of disputes by arbitration. For ease of reference, clause 9.0.0.0 and its sub clauses 9.0.1.0, 9.0.1.1 and 9.0.2.0 are extracted as under:

“9.0.0.0Arbitration

9.0.1.0 Subject to the provisions of Clauses 6.7.1.0, 6.7.2.0 and 9.0.2.0 hereof, any dispute arising out of a Notified Claim of the CONTRACTOR included in the Final Bill of the CONTRACTOR in accordance with the provisions of Clause 6.6.3.0 hereof, if the CONTRACTOR has not opted for the Alternative Dispute Resolution Machinery referred to in Clause 9.1.1.0 hereof, and any dispute arising out of any Claim(s) of the OWNER against the Signature Not Verified Signature Not Verified CONTRACTOR shall be referred to the arbitration of a Sole Arbitrator selected in accordance with the provisions of Clause 9.0.1.1 hereof. It is specifically agreed that the OWNER may prefer its Claim(s) against the CONTRACTOR as counter-claim(s) if a Notified Claim of the CONTRACTOR has been referred to arbitration. The CONTRACTOR shall not, however, be entitled to raise as a set-off defence or counter-claim any claim which is not a Notified Claim included in the CONTRACTOR's Final Bill in accordancewiththeprovisions ofClause6.6.3.0hereof.

9.0.1.1 The Sole Arbitrator referred to in Clause 9.0.1.0 hereof shall be selected by the CONTRACTOR out of a panel of 3 (three) persons nominated by the OWNER for the purpose of such selection, and should the CONTRACTOR fail to select an arbitrator within 30 (thirty) days of the panel of names of such nominees being furnished by the OWNER for thepurpose, the Sole Arbitratorshall beselectedbytheOWNER out ofthesaidpanel.

9.0.2.0 Any dispute(s) or difference(s) with respect to or concerning or relating to any of the following matters are hereby specifically excluded from the scope, purview and ambit of this Arbitration Agreement with the intention that any dispute or difference with respect to any of the said following matters and/or relating to the Arbitrator's or Arbitral Tribunal's jurisdiction with respect thereto shall not and cannot form the subject- matter of any reference or submission to arbitration, and the Arbitrator or the Arbitral Tribunal shall have no jurisdiction to entertain the same or to render any decision with respect thereto, and such matter shall be decided by the General Manager prior to the Arbitrator proceeding with or proceeding further with the reference. The said excludedmatters are:

(i) With respect to or concerning the scope or existence or otherwiseofthe ArbitrationAgreement;

(ii) Whether or not a Claim sought to be referred to arbitrationbytheCONTRACTOR is aNotifiedClaim;

(iii) Whether or not a Notified Claim is included in the CONTRACTOR's Final Bill in accordance with the provisions ofClause6.6.3.0hereof.

(iv) Whether or not the CONTRACTOR has opted for the Alternative Dispute Resolution Machinery with respect to any Notified Claim included in the CONTRACTOR's Final Bill.

Signature Not Verified Signature Not Verified

3. The petitioner submitted its final bill to the respondent on 19 October 2022.

4. As the final bill of the petitioner was not fully honoured, the dispute arose. The petitioner addressed a notice to the respondent on 16 May 2023, under Section 21 of the Arbitration and Conciliation Act 1996, 1“the1996Act”,hereinafter, and sought reference of the disputes between the parties to arbitration. The notice also p