18 ARBAP 66-21-1.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION APPLICATION NO. 66 OF 2021

B. E. Billimoria and Co. Ltd.

..Applicant

Vs.

Raptakos Brett & Co. Ltd.

.. Respondent

…..

Mr. Harindar Toor with M. S. Delhvi i/b Dehlvi & Co. for the Applicant.

Mr. Uma Kshirsagar Wagle for the Respondent.

…..

CORAM :- B.P.COLABAWALLA, J.

DATE :- DECEMBER 09, 2021.

P. C.:

1.

The above Arbitration Application has been filed under

Section 11 of the Arbitration and Conciliation Act, 1996 (for short “the

Arbitration Act”), seeking the constitution of the Arbitral Tribunal as

per the contract between the parties as reflected in the Agreement dated

30^th November, 2010. The Arbitration clause can be found in the general

conditions of the contract Volume 1, Part III and reads thus:

“4.7.2 Arbitration

4.7.2.1 All disputes and differences of any kind

whatever arising out of or in connection with the

Laxmi 1/12

LAXMI

SUBHASH

SONTAKKE

Digitally signed by

LAXMI SUBHASH

SONTAKKE

Date: 2021.12.15

11:45:27 +0530

18 ARBAP 66-21-1.doc

Contract or the carryi

ng out of the works (whether

during the progress of the works or after their

completion and whether before or after the

determination. Abandonment or breach of the contract

shall be referred to and settled by the Archi

tect who

sholl state hi

s decision in writing. Such decision may be

in the form of a final certificate or otherwise. The

decision of the Archi

tect with respect to any of the

excepted matters ( clause no. 2.5) shall be final and

without appeal. But if either the Employer or the

Contractor be dissatisfied with the decision of the

Archi

tect on a matter, question or di

spute of any kind

(except any of the excepted matters) or as to the

withholding by the Archi

tect of any certificate to whi

ch

the Contractor may clai

m to be entitled, then and i

n any

such case either party (the Employer or the Contractor)

may, withi

n 28 days after receiving notice of such

di

cision, gi

ve a written notice to the other party through

the Archi

tect / PM requiring that matters in dispute be

arbitrated upon. Such written notice shall be referred to

arbitration under the provision of the Arbitration and

Conciliation Act. 1996 or any statutory modification or

reenactment therof and the rules made thereunder and

for the time being in force. Such arbitration shall be

conducted by three arbitrators, one each for the

Employer and the Contractor, i.e. parties to the dispute

who in turn shall jointly nominate a thi

rd arbitrator

before the arbitration. Arbitrators shall be experienced

and knowledgeable persons in the field of construction

and development of first class real estate projects.”

2.

I must mention that though the entire contract is not

annexed to the Application, the same has been tendered to the Court in

a separate file which is taken on record.

Laxmi 2/12

18 ARBAP 66-21-1.doc

3.

The learned Advocate appearing on behalf of the

Respondent has fairly stated that the Respondent does not dispute the

existence and validity of the arbitration agreement. She however,

submitted that the arbitration clause between the parties contemplates

that there can be no arbitration in relation to excepted matters. She

submitted that the claim proposed to be made by the Applicant in the

above arbitration would fall within the excepted matters and therefore

the tribunal would have no jurisdiction to entertain such claims. She

submitted that in these circumstances, the above Section 11 Application

cannot be entertained and ought to be dismissed.

4.

Ha