IMPORTANT POINT
When the original contract is amended by mutual consent to do away with arbitration clause, the same cannot be invoked by any perty.

JUDGMENT :

A.M. Khanwilkar, J.

Leave granted.

1. These appeals take exception to the judgment and order dated 25.01.2019 passed by the High Court of Delhi at New Delhi in Arbitration Petition No.810 of 2016, whereby the High Court allowed the Arbitration Petition purportedly filed by respondent No. 1 Salma Dam Joint Venture, under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) and appointed a sole Arbitrator.

2. Briefly stated, the Ministry of External Affairs (for short, “MEA”) and the appellant in the leading appeal, Water and Power Consultancy Services (India) Limited (for short, “WAPCOSL”), a Public Sector Undertaking, entered into an agreement, dated 29.11.2004, for the implementation of the work on “the Reconstruction, Rehabilitation and completion of Salma Dam Project (3x14 MW), Afghanistan, Package III: Main Civil and Hydro-Mechanical Works” (for short, “project”). The appellant (WAPCOSL), was given the responsibility to provide financial, administrative and contractual management services for the MEA. Even though MEA was to provide the finances, the same was to be channeled through WAPCOSL to the successful awardee of the tender.

3. The respondent No.1 in both the appeals, Salma Dam Joint Venture (for short, “SDJV”) was formed by the M/s SSJV Projects Private Limited (for short, “SSPPL”) and M/s Angelique International Ltd. (for short, “AIL”) under a Joint Venture Agreement (for short, “JVA”) dated 09.09.2005 to submit its bid for the said project. In accordance with the terms and clauses of the JVA, SSPPL was nominated to be the ‘Lead Partner’ of SDJV with ninety-five percent (95%) share as compared to five percent (5%) share of AIL. SSPPL was also authorized to invoke arbitration by appointing an arbitrator, make claims, et cetera, on behalf of AIL, by executing a Power of Attorney (for short, “PoA”) dated 09.09.2005 in favour of SSPPL, in accordance with Clause 3.3 of the JVA.

4. SDJV was successful being the highest bidder and was awarded tender for the said project on 17.01.2006. That was followed by a Contract Agreement dated 09.03.2006 (for short, “Contract Agreement”) for executing the stated contract between the WAPCOSL and SDJV. Along with the said agreement, WAPCOSL and SDJV signed certain documents to be read with the Contract Agreement and to form part and parcel thereof. Out of several such documents, Conditions of Particular Applications (for short “CoPA”) is the relevant one for the purpose of this case. Clause 20.1 thereof deals with Contractor’s claim and Clause 20.6 deals with Arbitration and it is under these clauses, the respondent No. 1 has rested its case, that is, arbitrability and the power to invoke arbitration.

5. Be that as it may, the consideration of the Contract Agreement was Rs. 253.84 Crores. However, the same was raised to Rs. 470.40 Crores, on a representation made by SDJV. Once again, there was further change by way of revised rates, after a meeting between SDJV and a High-Power Committee (for short, “HPC”). In the said meeting, SDJV cited reasons which were beyond its control for initiating timely construction of the project. That justification found favour with the HPC for which it had recommended revised rates with regard to eight items. A letter was sent by WAPCOSL, informing about the acceptance of revised rates of eight items and raising the total consideration to Rs. 872.67 Crores. Subsequent to this, SDJV and WAPCOSL signed a revised agreement for the rates, referred to as the Amendment of Agreement (for short, “AoA”), dated 09.06.2015.

6. Despite signing of AoA, SDJV raised certain claims before the Engineer of WAPCOSL. After rejection of said representation, SDJV preferred six appeals to the Technical Committee constituted in terms of clause 2.1 of Section – 02 of AoA. Five of these appeals were rejected/disposed of vide report of the Technical Committee dated 28.10.2016.

7. In the meantime, on 04.06.2016, the Dam was inaugurated by the Hon’ble P