Technocrats Advisory Services Pvt. Ltd. vs Ministry Of Road, Transport And Highways & Anr.

$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10.04.2026
+ ARB.P. 1987/2025
TECHNOCRATS ADVISORY SERVICES PVT. LTD.
.....Petitioner
Through: Mr. Abhishek Shivpuri and Mr.
Rahul Bhatt, Advocates.
versus

MINISTRY OF ROAD, TRANSPORT AND HIGHWAYS &
ANR. .....Respondents
Through: Mr. Siddhartha Shankar Ray,
CGSC along with Ms. Sonali
Modi and Mr. Mukul Dev,
Advocates.

CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR

% JUDGEMENT (ORAL)
1. The present Petition has been filed under Section 11(6) of the
1
Arbitration and Conciliation Act, 1996 , seeking the appointment of
an Arbitrator to adjudicate the disputes inter se the parties arising out
2
of the Contract dated 20.01.2017 executed between the parties.
2. The Dispute Resolution Clause, being Clause 9.2 of the Special
Conditions of Contract, reads as under:
“9.2 Disputes shall be settled by arbitration in accordance with

the following provisions:

9.2.1 Selection of Arbitrators
Each dispute submitted by a Party to arbitration shall be

1
Act
2
Contract
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heard by a sole arbitrator or an arbitration panel composed
of three arbitrators, in accordance with the following
provisions:
(a) Where the Parties agree that the dispute concerns a technical
matter, they may agree to appoint a sole arbitrator or, failing
agreement on the identity of such sole arbitrator within thirty
(30) days after receipt by the other Party of the proposal of a
name for such an appointment by the Party who initiated the
proceedings, either Party may apply to the President, Indian
Roads Congress, New Delhi, for a list of not fewer than five
nominees and, on receipt of such list, the Parties shall
alternately strike names therefrom, and the last remaining
nominee on the list shall be the sole arbitrator for the matter in
dispute. If the last remaining nominee has not been
determined in this manner within sixty (60) days of the date of
the list, the president, Indian Roads Congress, New Delhi,
shall appoint, upon the request of either Party and from such
list or otherwise, a sole arbitrator for the matter in dispute.
(b) Where the Parties do not agree that the dispute concerns a
technical matter, the Client and the Consultants shall each
appoint one arbitrator, and these two arbitrators shall jointly
appoint a third arbitrator, who shall chair the arbitration panel.
If the arbitrators named by the Parties do not succeed in
appointing a third arbitrator within thirty (30) days after the
later of the two arbitrators named by the Parties has been
appointed, the third arbitrator shall, at the request of either
Party, be appointed by Secretary, the Indian Council of
Arbitration, New Delhi.
(c) If, in a dispute subject to Clause SC 9.2.1 (b), one Party fails
to appoint its arbitrator within thirty (30) days after the other
Party has appointed its arbitrator, the Party which has named
an arbitrator may apply to the Secretary, Indian Council of
Arbitration, New Delhi, to appoint a sole arbitrator for the
matter in dispute, and the arbitrator appointed pursuant to such
application shall be the sole arbitrator for that dispute.

9.2.2 Rules of Procedure
Arbitration proceedings shall be conducted in accordance with
procedures of the Arbitration & Conciliation Act, 1996, of India,
unless the Consultant is a foreign national/firm, where arbitration
proceedings shall be conducted in accordance with the rules of
procedure for arbitration of the United Nations Commission on
International Trade Law (UNCITRAL) as in force on the date of
this Contract.

9.2.3 Substitute Arbitrators
If for any reason an arbitrator is unable to perform his function, a
substitute shall be appointed in the same manner as the original
arbitrator.
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9.2.4 Qualifications of Arbitrators
The sole arbitrator or the third arbitrator appointed pursuant to
paragraphs (a) through (c) of Clause 8.2.1 hereof shall be an
internationally recognized legal or technical expert with extensive
experience in relation to the matter in dispute.

9.2.5 Miscellaneous
In any arbitration proceeding hereunder:
(a) Proceedings shall, unless otherwise agreed by the Parties,
be held in DELHI
(b) the English language shall be the official language for all
purposes; and [Note: English language may be changed to
any other Language, with the agreement of both the
Parties.]
(c) the decision of the sole arbitrator or of a majority of the
arbitrators (or of the third arbitrator if there is no such
majority) shall be final and binding and shall be enforceable
in any court of competent-jurisdiction, and the Parties
hereby waive any objections to or claims of immunity in
respect of such enforcement.
(d) The maximum amount payable per Arbitrator in Arbitration

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In exceptional cases, such as cases involving major legal implications/
wider ramifications/ higher financial stakes etc., a special fee structure
could be fixed in consultation with the Contractor/ Supervision
Consultants and with the specific approval of the CF(NH) and MORT&H
before appointment of the Arbitrator.

3. The material on record indicates that the statutory requirement
under Section 21 of the Act for invocation of the aforestated
Arbitration clause stands duly complied with vide Legal Notice dated
20.03.2023 issued by the Petitioner.
4. Learned counsel for the Respondents submit that the Reply to
the present Petition has been filed; however, the same has been
returned under objections. A copy of the Reply has been handed over
across the bar. The Registry is directed to take the said Reply on
record.
5. Mr. Ray, learned CGSC, appearing on behalf of the
Respondents, raises preliminary objections to the present Petition. He,
at the outset, submits that though the clause provides for the venue of
the arbitration to be at Delhi, the Contract, however, itself came to be
entered into as between the parties in Bihar. Furthermore, the stamp
paper that was purchased for the purpose of the Contract was also
purchased in Bihar.
6. He submits that the scope of the work and the performance
thereof is all in the State of Bihar, and no part of the cause arose in
Delhi. He, therefore, submits that Bihar would have the jurisdiction
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over any proceedings relating to the arbitration and not Delhi.
7. Learned counsel appearing on behalf of the Respondents also
raises an objection with respect to the limitation. He submits that the
claims that have been raised herein are barred by limitation.
8. Per contra , learned counsel appearing on behalf of the
Petitioner would submit that the Hon’ble Supreme Court in the
3
Judgment of BGS SGS Soma JV v. NHPC has clearly held that if the
arbitration agreement provides for a venue for arbitration and there is
no contrary indicia in the Agreement, the venue is to be treated as the
seat. He further submits that in light of the Hon’ble Supreme Court’s
4
Judgment in SBI General Insurance Co. Ltd. v. Krish Spinning the
exception that was provided for in Vidya Drolia & Ors. v. Durga
5
Trading Corporation with respect to the consideration of issues
pertaining to limitation also no longer subsist and therefore, the
present matter should be referred to an Arbitrator and the seat of the
present proceeding should be held in Delhi.
9. This Court has heard the submissions of learned counsel
appearing on behalf of the parties and with their able assistance had
the benefit of going through the relevant clauses and the judgments.
10. This Court is of the opinion that the assertions made on behalf
of learned counsel appearing on behalf of the Petitioner would have to
be accepted since indeed the judgment of the Hon’ble Supreme Court
in BGS SGS Soma JV (supra) holds that in the event that there is no
contrary indicia in the agreement then the venue will have to be
treated as the seat and therefore, the present petition is clearly

3
(2020) 4 SCC 234
4
(2024) 12 SCC 1
5
(2021) 2 SCC 1
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maintainable in Delhi. Relevant para of BGS SGS Soma JV (supra) is
reproduced hereunder:
“ 61. It will thus be seen that wherever there is an express
designation of a “venue”, and no designation of any alternative
place as the “seat”, combined with a supranational body of rules
governing the arbitration, and no other significant contrary indicia,
the inexorable conclusion is that the stated venue is actually the
juridical seat of the arbitral proceeding.”


11. Furthermore, as rightly contended by learned counsel appearing
on behalf of the Petitioner in light of the judgment of the Hon’ble
Supreme Court in Krish Spinning (supra) , issues relating to
limitation can be taken up and adjudicated upon by the learned
Arbitrator.
12. The legal position governing the scope and standard of judicial
scrutiny under Section 11(6) of the Act is no longe r res integra . A
three-Judge Bench of the Hon’ble Supreme Court in Krish Spinning
(supra) , after taking into consideration the authoritative
pronouncement of the seven-Judge Bench in Interplay Between
Arbitration Agreements under Arbitration Act, 1996 & Stamp
6
Act, 1899, In re , comprehensively delineated the contours of judicial
intervention at the stage of Section 11 of the Act. The excerpt of Krish
Spg (supra ) reads as under:-
“ (c) Judicial interference under the 1996 Act

110 . The parties have been conferred with the power to decide and
agree on the procedure to be adopted for appointing arbitrators. In
cases where the agreed upon procedure fails, the courts have been
vested with the power to appoint arbitrators upon the request of a
party, to resolve the deadlock between the parties in appointing the
arbitrators.
111 . Section 11 of the 1996 Act is provided to give effect to the
mutual intention of the parties to settle their disputes by arbitration
in situations where the parties fail to appoint an arbitrator(s). The

6
(2024) 6 SCC 1
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parameters of judicial review laid down for Section 8 differ from
those prescribed for Section 11. The view taken in SBP &
Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 and affirmed in Vidya
Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 that Sections 8
and 11, respectively, of the 1996 Act are complementary in nature
was legislatively overruled by the introduction of Section 11(6-A)
in 2015. Thus, although both these provisions intend to compel
parties to abide by their mutual intention to arbitrate, yet the scope
of powers conferred upon the courts under both the sections are
different.
112 . The difference between Sections 8 and 11, respectively, of the
1996 Act is also evident from the scope of these provisions. Some
of these differences are:
112.1 . While Section 8 empowers any “judicial authority” to refer
the parties to arbitration, under Section 11, the power to refer has
been exclusively conferred upon the High Court and the Supreme
Court.
112.2 . Under Section 37, an appeal lies against the refusal of the
judicial authority to refer the parties to arbitration, whereas no such
provision for appeal exists for a refusal under Section 11.
112.3 . The standard of scrutiny provided under Section 8 is that of
prima facie examination of the validity and existence of an
arbitration agreement. Whereas, the standard of scrutiny under
Section 11 is confined to the examination of the existence of the
arbitration agreement.

112.4 . During the pendency of an application under Section 8,
arbitration may commence or continue and an award can be passed.
On the other hand, under Section 11, once there is failure on the
part of the parties in appointing the arbitrator as per the agreed
procedure and an application is preferred, no arbitration
proceedings can commence or continue.
113 . The scope of examination under Section 11(6-A) is confined
to the existence of an arbitration agreement on the basis of Section
7. The examination of validity of the arbitration agreement is also
limited to the requirement of formal validity such as the
requirement that the agreement should be in writing.

114 . The use of the term “examination” under Section 11(6-A) as
distinguished from the use of the term “rule” under Section 16
implies that the scope of enquiry under Section 11(6-A) is limited
to a prima facie scrutiny of the existence of the arbitration
agreement, and does not include a contested or laborious enquiry,
which is left for the Arbitral Tribunal to “rule” under Section 16.
The prima facie view on existence of the arbitration agreement
taken by the Referral Court does not bind either the Arbitral
Tribunal or the Court enforcing the arbitral award.

115 . The aforesaid approach serves a twofold purpose — firstly, it
allows the Referral Court to weed out non-existent arbitration
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agreements, and secondly, it protects the jurisdictional competence
of the Arbitral Tribunal to rule on the issue of existence of the
arbitration agreement in depth.


117 . In view of the observations made by this Court in Interplay
Between Arbitration Agreements under the Arbitration Act, 1996
& the Stamp Act, 1899, In re, (2024) 6 SCC 1 , it is clear that the
scope of enquiry at the stage of appointment of arbitrator is limited
to the scrutiny of prima facie existence of the arbitration
agreement, and nothing else. For this reason, we find it difficult to
hold that the observations made in Vidya Drolia v. Durga Trading
Corpn., (2021) 2 SCC 1 and adopted in NTPC Ltd. v. SPML Infra
Ltd. , (2023) 9 SCC 385 that the jurisdiction of the Referral Court
when dealing with the issue of “accord and satisfaction” under
Section 11 extends to weeding out ex facie non-arbitrable and
frivolous disputes would continue to apply despite the subsequent
decision in Interplay Between Arbitration Agreements under the
Arbitration Act, 1996 & the Stamp Act, 1899, In re, (2024) 6 SCC
1.

119 . The question of “accord and satisfaction”, being a mixed
question of law and fact, comes within the exclusive jurisdiction of
the Arbitral Tribunal, if not otherwise agreed upon between the
parties. Thus, the negative effect of competence-competence would
require that the matter falling within the exclusive domain of the
Arbitral Tribunal, should not be looked into by the Referral Court,
even for a prima facie determination, before the Arbitral Tribunal
first has had the opportunity of looking into it.
120 . By referring disputes to arbitration and appointing an
arbitrator by exercise of the powers under Section 11, the Referral
Court upholds and gives effect to the original understanding of the
contracting parties that the specified disputes shall be resolved by
arbitration. Mere appointment of the Arbitral Tribunal does not in
any way mean that the Referral Court is diluting the sanctity of
“accord and satisfaction” or is allowing the claimant to walk back
on its contractual undertaking. On the contrary, it ensures that the
principle of arbitral autonomy is upheld and the legislative intent of
minimum judicial interference in arbitral proceedings is given full
effect. Once the Arbitral Tribunal is constituted, it is always open
for the defendant to raise the issue of “accord and satisfaction”
before it, and only after such an objection is rejected by the
Arbitral Tribunal, that the claims raised by the claimant can be
adjudicated.
121 . Tests like the “eye of the needle” and “ex facie meritless”,
although try to minimise the extent of judicial interference, yet they
require the Referral Court to examine contested facts and
appreciate prima facie evidence (however limited the scope of
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enquiry may be) and thus are not in conformity with the
principles of modern arbitration which place arbitral autonomy and
judicial non-interference on the highest pedestal.
122 . Appointment of an Arbitral Tribunal at the stage of Section 11
petition also does not mean that the Referral Courts forego any
scope of judicial review of the adjudication done by the Arbitral
Tribunal. The 1996 Act clearly vests the national courts with the
power of subsequent review by which the award passed by an
arbitrator may be subjected to challenge by any of the parties to the
arbitration.
*
126 . The power available to the Referral Courts has to be construed
in the light of the fact that no right to appeal is available against
any order passed by the Referral Court under Section 11 for either
appointing or refusing to appoint an arbitrator. Thus, by delving
into the domain of the Arbitral Tribunal at the nascent stage of
Section 11, the Referral Courts also run the risk of leaving the
claimant in a situation wherein it does not have any forum to
approach for the adjudication of its claims, if its Section 11
application is rejected.
127 . Section 11 also envisages a time-bound and expeditious
disposal of the application for appointment of arbitrator. One of the
reasons for this is also the fact that unlike Section 8, once an
application under Section 11 is filed, arbitration cannot commence
until the Arbitral Tribunal is constituted by the Referral Court. This
Court, on various occasions, has given directions to the High
Courts for expeditious disposal of pending Section 11 applications.
It has also directed the litigating parties to refrain from filing bulky
pleadings in matters pertaining to Section 11. Seen thus, if the
Referral Courts go into the details of issues pertaining to “accord
and satisfaction” and the like, then it would become rather difficult
to achieve the objective of expediency and simplification of
pleadings.
128 . We are also of the view that ex facie frivolity and dishonesty
in litigation is an aspect which the Arbitral Tribunal is equally, if
not more, capable to decide upon the appreciation of the evidence
adduced by the parties. We say so because the Arbitral Tribunal
has the benefit of going through all the relevant evidence and
pleadings in much more detail than the Referral Court. If the
Referral Court is able to see the frivolity in the litigation on the
basis of bare minimum pleadings, then it would be incorrect to
doubt that the Arbitral Tribunal would not be able to arrive at the
same inference, most likely in the first few hearings itself, with the
benefit of extensive pleadings and evidentiary material.”

(emphasis supplied)


13. The decision in Krish Spinning (supra) thus unequivocally
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reiterates that the Referral Court, while exercising jurisdiction under
Section 11 of the Act, is required to confine itself to a prima facie
examination of the existence of a valid Arbitration Agreement and
nothing beyond. The Court’s role is facilitative and
procedural, namely , to give effect to the parties’ agreed mechanism of
dispute resolution, without embarking upon an adjudication of
contentious factual or legal issues, which are reserved for the Arbitral
Tribunal.

14. In view of the law as laid down by the Hon’ble Supreme Court
in Krish Spinning (supra), the scope of this Court’s jurisdiction under
Section 11 of the Act is extremely circumscribed. All the contentions
sought to be raised herein are matters that can appropriately be urged
before the learned Arbitrator, who is legally empowered and
competent to adjudicate upon the same.
15. In view thereof, this Court is of the view that the matter may be
referred to arbitration by an Arbitrator for the purpose of the
resolution of disputes between the parties.
16. Material on record indicates that the valuation of the subject
matter of the disputes is stated to be approximately Rs. 2 crores.
17. Accordingly, this Court hereby requests Mr. Shiv Ram,
Advocate [Mobile No. 9818191670], to enter upon the reference and
adjudicate the disputes inter se the parties.
18. The learned Arbitrator may proceed with the arbitration
proceedings, subject to furnishing to the parties the requisite
disclosures as required under Section 12(2) of the Act.
19. The learned Arbitrator shall be entitled to a fee in accordance
with the Fourth Schedule of the Act or as may otherwise be agreed to
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between the parties and the learned Arbitrator.
20. The parties shall share the learned Arbitrator’s fee and arbitral
costs equally.
21. All rights and contentions of the parties in relation to the
claims/counter claims are kept open, to be decided by the learned
Arbitrator on their merits, in accordance with law.
22. Needless to state, nothing in this order shall be construed as an
expression of opinion of this Court on the merits of the controversy.

23. Let the copy of the said order be sent to the learned Arbitrator
through all permissible modes, including electronic mode as well.
24. Accordingly, the present Petition stands disposed of in the
above-stated terms.

HARISH VAIDYANATHAN SHANKAR, J.
APRIL 10, 2026/tk/va


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