HITACHI ENERGY INDIA LIMITED vs ABB INDIA LIMITED

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
th
DATED THIS THE 16 DAY OF OCTOBER 2026
BEFORE
THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD
CIVIL MISCELLANEOUS PETITION NO. 330 OF 2026

BETWEEN:

HITACHI ENERGY INDIA LIMITED
(FORMERLY KNOWN AS ABB POWER PRODUCTS
AND SYSTEMS INDIA LIMITED)
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 2013
HAVING ITS REGISTERED OFFICE AT
TH
8 FLOOR, BRIGADE OPS 70/401
KODIGEHALLI MAIN ROAD
BENGALURU, KARNATAKA-560 092.
... PETITIONER

(BY SRI. NANDAKUMAR C K, SENIOR COUNSEL FOR
SRI. ADIT NILESH SHAH, ADVOCATE)

AND

ABB INDIA LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956
HAVING ITS NOW REGISTERED OFFICE AT
RD
DISHA, 3 FLOOR, PLOT NO.5 & 6
ND
2 STAGE, PEENYA INDUSTRIAL AREA IV
PEENYA, BENGALURU, KARNATAKA-560 058.
... RESPONDENT

(BY SRI.NANDA KISHORE, ADVOCATE )

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THIS CMP IS FILED UNDER SECTION 11(6) OF THE
ARBITRATION AND CONCILIATION ACT 1996, PRAYING
TO APPOINT HON’BLE MR. JUSTICE NAGARAJA RAO
KUMAR(RETD) FORMER JUDGE OF THE HON’BLE SUPREME
COURT OF INDIA, OR SUCH OTHER FIT AND PROPER
PERSON AS THIS HON’BLE COURT MAY DEEM FIT, AS THE
SOLE ARBITRATOR TO ADJUDICATE THE DISPUTES THAT
HAVE ARISEN BETWEEN HITACHI AND ABB UNDER AND IN
RELATION TO THE JOINT OPERATIONAL PROTOCOL
AGREEMENT DATED 9 MARCH 2021, IN TERMS OF CLAUSE
13 OF THE SAID AGREEMENT (ANNEXURE-B).

THIS PETITION, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.10.2026, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT, MADE THE
FOLLOWING:


CORAM: HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD

CAV ORDER

This petition under Section 11(6) of the
Arbitration and Conciliation Act, 1996 (for short, “the
1996 Act”) seeks appointment of a Sole Arbitrator to
adjudicate upon the disputes arising under the
subcontract dated 07.12.2020. The subcontract
contains no independent arbitration clause. The
petitioner relies on incorporation by reference of
Clause 13 of the Joint Operational Protocol Agreement

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dated 09.03.2021 (for short, “JOPA”) into the said
subcontract.

2. The petitioner is a company incorporated
under the Companies Act, 2013, and is engaged,
inter alia, in the business of power grids, including
products, systems and projects relating to power grids
automation, integration, high-voltage products and
transformers. The respondent is a company
incorporated under the Companies Act, 1956, and is
engaged in the business of electrification, motion,
process automation and robotics.

3. By order dated 27.11.2019, the National
Company Law Tribunal, Bengaluru, sanctioned a
Scheme of Arrangement under Sections 230 to 232 of
the Companies Act, 2013, whereby, the respondent’s
power grid business stood transferred to and vested in
the petitioner with effect from 01.04.2019.

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4. On 14.03.2020, Indian Oil Corporation Limited
(for short, “IOCL”) awarded the Barauni Refinery
Project contract to the respondent. On 19.03.2020,
the parties jointly requested IOCL to novate the
project contract in favour of the petitioner pursuant to
the Scheme. IOCL declined novation but approved a
subcontracting arrangement permitting the petitioner
to execute the project as the respondent’s
subcontractor.

5. Accordingly, the parties executed the
subcontract agreement dated 07.12.2020. Towards
IOCL, the respondent continued as main contractor
and the petitioner undertook execution as the
subcontractor. As between the parties, the agreement
described the respondent’s role as fiduciary agent and
allocated the project benefits, costs, liabilities and
risks to the petitioner.

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6. Before 07.12.2020, i.e., on 02.12.2020, the
parties have agreed upon the terms and conditions of
JOPA to govern their operational arrangements for
contracts that could not immediately be novated. It
was subsequently registered on 09.03.2021. JOPA
contains an arbitration clause in Clause 13. The
petitioner relies on JOPA as the standard form
contract governing the framework referred to in the
project-specific subcontract. To determine whether
there is a valid arbitration agreement between the
parties, the issue to be decided before this Court is
whether a reference to JOPA in the subcontract
incorporates the said arbitration clause for disputes
arising under the subcontract.

7. On disputes arising in connection to
operationalising of the subcontract, the petitioner
instituted proceedings under Section 9 of the 1996 Act
in Com.A.A. No.33/2026 before the LXXXVII Additional

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Chief Civil and Sessions Judge, Commercial Court,
Bengaluru. An ad interim ex parte order was granted
on 23.01.2026. By order dated 25.04.2026, the
Commercial Court dismissed the proceedings and
vacated the ad interim order. The petitioner preferred
COMAP No.264/2026 under Section 37 and, obtained
an interim order therein. The said appeal is pending
before the Division Bench of this Court.

8. Meanwhile, the petitioner issued notice dated
15.04.2026 under Section 21 invoking JOPA Clause
13, produced as Annexure-J. The respondent replied
on 15.05.2026, as reflected in Annexure-K. The
petitioner states that the respondent did not agree to
constitute the arbitral tribunal in accordance with the
agreement and it has therefore, approached this
Court.

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9. Learned counsel for the petitioner submits
that JOPA is a standard form contract governing the
parties’ arrangements for unnovated projects, while
the subcontract sets out the project-specific
obligations. The disputes arose under the latter.
Nevertheless, the subcontract refers to JOPA as the
governing standard contractual framework. The
petitioner therefore invokes Section 7(5) of the 1996
Act, rather than contending that the disputes originate
under JOPA.

10. It is further submitted that Clause 5 of
subcontract expressly makes JOPA an integral part of
subcontract and Clause 6 gives JOPA precedence in
the event of inconsistency. These provisions
demonstrate acceptance of the standard framework.
The arbitration clause need not be reproduced in the
subcontract or separately identified where the

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reference adopts the consensual standard terms and
conditions of the JOPA as an integral part.

11. In support of his contention, learned counsel
relied upon INOX Wind Ltd. v. Thermocables Ltd.,
(2018) 2 SCC 519, and Giriraj Garg v. Coal India
Ltd., (2019) 5 SCC 192 , and sought allowance of
the petition.

12. Learned counsel for the respondent submits
that the subcontract and JOPA are independent
agreements; the subcontract contains neither an
arbitration clause nor a provision specifically
incorporating JOPA’s arbitration clause. A general
reference, even if present, is insufficient. According to
the respondent, the documents do not disclose an
intention to adopt JOPA in its entirety or to submit
subcontract disputes to arbitration.

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13. The respondent also contends that
references to invoicing and routing of IOCL receipts
through the respondent, followed by transfer to the
petitioner under the JOPA, are operational
arrangements and cannot import arbitration. Reliance
is placed on M.R. Engineers & Contractors (P) Ltd.
v. Som Datt Builders Ltd., (2009) 7 SCC 696, and
NBCC (India) Ltd. v. Zillion Infraprojects (P)
Ltd., 2024 INSC 218. Accordingly, dismissal of the
petition is sought.

14. Heard the learned counsel for both the
parties.

15. The question is whether the subcontract’s
reference to JOPA, in its capacity as the parties’
standard form contractual framework, incorporates
Clause 13 as per under Section 7(5) of the 1996 Act,
so as to permit arbitration of a dispute admittedly

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arising under the subcontract. It is relevant to extract
Section 7(5) of the 1996 Act, which reads as under:
“7. Arbitration agreement.
…………..
(5) The reference in a contract to a document
containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing and
the reference is such as to make that arbitration clause
part of the contract.”

16. The provision does not make every reference
to another document an Arbitration Agreement. The
reference must disclose an intention to adopt the
arbitration clause as a part of the contract. What is to
be ascertained from the contractual language is the
intention, the function of the referred document and
the extent of its adoption. Where the statutory
requirement is fulfilled, physical reproduction of the
arbitration clause is unnecessary.

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17. In SBI General Insurance Co. Ltd. v.
Krish Spinning, 2024 INSC 532, the Supreme
Court explains the limited examination of prima facie
existence at the Section 11 stage. The Court must
examine limitation of the application filed for the
appointment of an arbitrator; questions concerning
limitation of the substantive claims are for the tribunal
to decide. This limited inquiry does not permit
appointment of an arbitrator where the documents
disclose no agreement to arbitrate.

18. In M.R. Engineers & Contractors (P) Ltd.
(supra), particularly paragraph 24, the Supreme
Court distinguished incorporation of an arbitration
agreement by reference and mere general reference
to another contract. A general reference to an
independent contract ordinarily does not import
arbitration, and adoption of performance terms alone
is insufficient. The judgment also recognised

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incorporation of arbitration agreement/clause when
governing standard terms and conditions are adopted
and that the imported clause must be applicable to
disputes under the adopting contract, consistent with
its terms.

19. In INOX Wind Ltd. (supra), the Supreme
Court clarified that the standard form contract
principle extends beyond trade associations and
professional bodies and includes even the accepted
standard terms of a contracting party. The purchase
order there adopted accompanying standard terms
that the supplier accepted. A general reference to
those terms was sufficient to include arbitration.
Accordingly, a separate mention of the arbitration
clause is not invariably required when the reference
embraces the terms of governing standard form
contract. The relevant paragraphs are extracted
below:

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“17. This Court in M.R. Engineers &
Contractors (P) Ltd. vs. Som Datt Builders Ltd.
[(2009) 7 SCC 696],, which is discussed in
detail supra, held the rule to be that an
arbitration clause in an earlier contract cannot
be incorporated by a general reference. The
exception to the rule is a reference to a
standard form of contract by a trade
association or a professional institution in
which case a general reference would be
sufficient for incorporation of an arbitration
clause. Reliance was placed by this Court on
Russell on Arbitration 23rd Edition (2007). The
development of law regarding incorporation
after the judgment in M.R. Engineers requires
careful consideration. It has been held in
Habas Sinai Ve Tibbi Gazlar Isthisal Endustri
AS v Sometal SAL that a standard form of one
party is also recognized as a ‘single contract’
case. In the said case, it was also held that in
single contract cases general reference is
enough for incorporation of an arbitration
clause from a standard form of contract. There
is no distinction that is drawn between
standard forms by recognized trade
associations or professional institutions on one

14
hand and standard terms of one party on the
other. Russell on Arbitration 24th Edition
(2015) also takes note of the Habas case.
18. We are of the opinion that though
general reference to an earlier contract is not
sufficient for incorporation of an arbitration
clause in the later contract, a general reference
to a standard form would be enough for
incorporation of the arbitration clause. In M.R.
Engineers this Court restricted the exceptions
to standard form of contract of trade
associations and professional institutions. In
view of the development of law after the
judgment in M.R. Engineers’ case, we are of
the opinion that a general reference to a
consensual standard form is sufficient for
incorporation of an arbitration clause. In other
words, general reference to a standard form of
contract of one party will be enough for
incorporation of arbitration clause. A perusal of
the passage from Russell on Arbitration 24th
Edition (2015) would demonstrate the change
in position of law pertaining to incorporation
when read in conjunction with the earlier
edition relied upon by this Court in M.R.
Engineers case. We are in agreement with the

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judgment in M.R. Engineers case with a
modification that a general reference to a
standard form of contract of one party along
with those of trade associations and
professional bodies will be sufficient to
incorporate the arbitration clause.”

20. In Giriraj Garg (supra), the Apex Court
held that in case of individual sale orders being
governed by a standard contractual scheme, the
arbitration clause in the said scheme formed a part of
the sale orders through their governing reference. The
distinction between a single-contract case and a two-
contract case concerns the function of the referred
terms. Several documents may constitute the
contractual terms of one transaction.

21. NBCC (India) Ltd. (supra), does not
displace INOX Wind (supra). Paragraph 15
expressly recognises incorporation of an arbitration
clause/agreement through general reference to a

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party’s standard form contract. On its facts, however,
the Court identified a two-contract situation involving
another contract’s terms and a letter of intent
expressly directing disputes only to civil courts.
“General reference” was therefore not held to be
“incorporation” of the arbitration clause therein.

22. From these authorities, it is very clear that
first, the adopting instrument must be in writing.
Secondly, it must identify the document containing
the arbitration clause. Thirdly, the reference must
adopt that document in the form of governing
standard form contract, rather than select isolated
obligations. Fourthly, the clause must be capable of
application to the subcontract dispute and must not
conflict with the provisions of the concerned
subcontract.

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23. It is relevant to extract Clause 13 of JOPA
and Clauses 2, 5 and 6 of subcontract. The same read
as under:
Clause 13 of JOPA:
“13. Any dispute arising out of or in
relation to this Agreement shall be resolved by
final and binding arbitration, conducted in
English, and held in Bengaluru (which shall
also be the seat of arbitration) in accordance
with the provisions of the Indian Arbitration
and Conciliation Act, 1996. A sole arbitrator
shall be appointed jointly by the Parties within
30 (thirty) days of either Party requesting the
other to suggest or approve a sole arbitrator. If
the Parties fail to agree on a sole arbitrator
within the 30 (thirty) days period mentioned
above, then any of the Parties may request the
relevant court in accordance with the
Arbitration and Conciliation Act, 1996 to
appoint the arbitrator. The foregoing shall not
preclude either Party from seeking interim or
injunctive reliefs or orders for interim
preservation from the courts in Bengaluru,
India.”
Clauses 2, 5 and 6 of subcontract:

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“2. Effect of Contract: Whenever
reference is made in this agreement to the
Contract, such reference shall be construed to
include all documents forming a part of the
Contract including but not limited to the plans,
specifications, change orders, general
conditions, supplemental conditions and
addenda. To the extent that they are
applicable to the work to be performed by
APPSIL under this agreement, the provisions of
the Contract that describe ABB's obligations to
IOCL applicable to the entire Contract to be
performed by APPSIL under this agreement are
incorporated herein by this reference with the
same force and effect as though set forth in
full, APPSIL expressly assumes all of the main
Contractor's obligations to IOCL applicable to
the work to be performed under the Contract.
APPSIL agrees to be bound to ABB to the same
extent that ABB is bound to IOCL, by all terms
and provisions of the Contract, and by all
decisions, rulings, and interpretations made by
IOCL or its authorized representative. In the
event that any provision of this agreement as
applied to the work of APPSIL hereunder is
found to be inconsistent with the provisions of

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the Contract, the provisions of the Contract
shall prevail and shall govern the obligations of
APPSIL under this Agreement.
……..
5. Attached - Arrangement between
INABB and APPSIL required for Contract
execution Annexure "A", FOA issued by IOCL to
ABB Annexure "B", Contract executed between
ABB and IOCL- Annexure "C", AND Joint
Operation Protocol - Annexure "D" are integral
parts of this Agreement.

6. Nothing in this Agreement is intended
to affect the operation or interpretation of Joint
Operation Protocol Agreement, Scheme and or
other agreements entered pursuant to the
Scheme. If there is any conflict or
inconsistency between the provisions of this
Agreement, Joint Operational Protocol
Agreement and any of the Scheme, or other
agreements entered pursuant to the Scheme,
the provision of the Scheme and other
agreement, the Joint Operational Protocol
Agreement shall prevail over this Agreement to
the extent of the inconsistency.”

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24. From the above, it is clear that JOPA
provides the standard intercompany framework
between the parties for unnovated projects and the
subcontract applies that framework to the Barauni
project. Its standard-form function lies in supplying
the governing terms and conditions against which
project-specific rights and obligations operate. The
execution of the subcontract as a separately signed
instrument does not, by itself, exclude the governing
standard form contract principle.

25. It is undisputed that both parties agreed
onto the terms of JOPA on 02.12.2020 which was later
registered on 09.03.2021. The fact that JOPA was
registered after the subcontract does not make it a
subsequent agreement. Contemporaneous execution
of the agreements supports the conclusion that the
JOPA framework was known to and accepted by the

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parties at the time of execution of the subcontract, as
also reflected in its terms.

26. The reference, read with the pleaded
precedence provision, can be understood as an
adoption of the standard framework, governing the
subcontractual relationship. It is clear from the terms
that the reference is not treated as a bare mention of
JOPA for an isolated payment related transaction. The
precedence provision gives effect to the adopted
framework where project-specific terms conflict with
it. The said provision is corroborative to the
petitioner’s contention and the decisive feature is the
subcontract’s adoption of the governing standard
terms and conditions of JOPA. Furthermore, Clause 5
of the subcontract clearly adopts JOPA as an integral
part of the former. This establishes the intention of
the parties to incorporate JOPA in its entirety into the
subcontract.

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27. On that reading, the adopted standard terms
include Clause 13. The parties’ written consent
towards the subcontract’s reference made to the
governing standard form contract together with their
acceptance of JOPA is demonstrated. Arbitration is not
imposed merely because the agreements relate to the
same project. Rather, in view of the above, the
dispute-resolution term becomes part of the
subcontract under Section 7(5). The absence of
mention or repetition of Clause 13, in the subcontract,
does not defeat its incorporation under the standard-
form contract principle.

28. In view of the above, based on the findings
concerning adoption of the standard terms and their
applicability, this Court is satisfied prima facie that the
subcontract incorporates JOPA Clause 13 and the said
Clause therefore, constitutes a valid arbitration
agreement between the parties under Section 7(5) of

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the 1996 Act. The dispute sought to be referred arises
under the subcontract read with JOPA. The absence of
a separately reproduced arbitration clause in the
subcontract does not bar invocation of the said clause
for the appointment of an arbitrator. These
observations are confined to the referral inquiry and
do not determine the merits of the subcontract
dispute.

29. Having regard to the existence of the
arbitration clause contained in the JOPA, which
provides for resolution of disputes arising between the
parties, and the fact that the petitioner has duly
invoked the said arbitration clause by issuing notice
under Section 21 of the Act, this Court is of the
opinion that a Sole Arbitrator is required to be
appointed for adjudication of the disputes between the
parties.

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30. Accordingly, the following:
ORDER
a) Civil Miscellaneous Petition is allowed.

b) The Hon’ble Sri Justice V.Gopala Gowda,
Former Judge, Supreme Court of India, is
appointed as the Sole Arbitrator in the
present case to arbitrate the disputes
between the parties at the Arbitration and
Conciliation Centre (Domestic &
International), Bengaluru, as per the Rules
governing the said Arbitration Centre.

c) All the claims and contentions of the
parties are left open.

d) Registry is directed to communicate this
order via e-mail to the Arbitration and
Conciliation Centre (Domestic &
International), Khanija Bhavan, Bengaluru,
and also to Hon’ble Mr.Justice or the
learned Sole Arbitrator.


e) Registry is directed to return all the original
documents produced by any of the parties

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after obtaining Photostat copies of the
same.

f) Parties are directed to appear before the
Director, Arbitration and Conciliation
Centre, Bengaluru, on 30.11.2026 at 11:30
a.m.

Sd/-
(H.T. NARENDRA PRASAD)
JUDGE



Cm/-