Unclear supersession of an arbitration clause does not bar appointment under Section 11.

The Respondent invited the Applicant to tender for OHE and PSI works at its Mukutban siding. The tender contained an arbitration clause providing for arbitration in Mumbai.

The Applicant completed the work, and after the Defects Liability Period expired, claimed that retention money of ₹55,98,780 was due.

Following reminders, a notice of dispute and a notice invoking arbitration, the Applicant applied under Section 11 of the Arbitration and Conciliation Act, 1996, after the Respondent did not agree to appoint an arbitrator.

The Respondent relied on later General Terms and Conditions containing an arbitration clause referring to Kolkata and a clause conferring exclusive jurisdiction on Kolkata courts; it contended that these terms superseded the tender clause.

The Applicant disputed that the later terms had been accepted as a replacement for the tender conditions.

1. Whether an arbitration agreement existed between the parties and whether the later contractual documents were shown to have superseded the tender’s arbitration clause.

2. Whether the arbitration provisions relied on by the Respondent established Kolkata as the agreed seat, thereby excluding the Bombay High Court’s jurisdiction under Section 11.

3. Whether the Court should appoint a sole arbitrator while leaving disputes about incorporation, supersession and the parties’ substantive claims to the arbitral tribunal.

Under Section 11 of the Arbitration and Conciliation Act, 1996, the Court considers whether an arbitration agreement exists, while keeping the limited nature of the appointment-stage inquiry in view.

Duro Felguera, S.A. v. Gangavaram Port Limited, (2017) 9 SCC 729, was relied on for that limited-inquiry principle, although the Court noted that Section 11(6A), considered in that decision, was later omitted.

Under Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited, (2017) 7 SCC 678, the agreed seat ordinarily carries exclusive supervisory jurisdiction; Ravi Ranjan Developers Private Limited v. Aditya Kumar Chatterjee, 2022 SCC OnLine SC 568, requires the agreement and surrounding contractual arrangement to be considered in identifying whether a stated place is the seat or merely a venue.

Whether later terms were incorporated and replaced an earlier arbitration clause depends on the contractual material showing the parties’ agreement; the mere presence of a different arbitration clause in another document does not, by itself, establish supersession.

Clause 18.7 of the tender expressly referred disputes to arbitration and stated that proceedings would be held in Mumbai.

The Court accepted that the Respondent relied on later terms referring to arbitration in Kolkata and exclusive jurisdiction of Kolkata courts, but found that the purchase order did not state that the tender clause or its Mumbai provision was cancelled or replaced.

The purchase order described the general terms as mutually agreed while contemplating that a detailed contract would follow; the Applicant’s subsequent reliance on the tender conditions also supported the conclusion that the tender remained contractually relevant.

Although the Kolkata provisions could indicate Kolkata as the seat if established as the parties’ final agreed terms, the material before the Court did not clearly establish that the Applicant had accepted them as replacing the Mumbai clause.

The remaining questions, including incorporation, supersession, delay, liquidated damages and retention, could be raised before the arbitrator.

It appointed Mr Jash Gandhi, Advocate, as sole arbitrator to adjudicate the disputes, including claims and counterclaims, while keeping all issues on the merits open before the tribunal.

The parties were directed to bear the arbitral costs and fees equally in the first instance, subject to the final award.