[Cites 6, Cited by 0]
Bombay High Court
Ind Infotech Services, Nagpur Through ... vs Union Of India, Through Ministry Of ... on 6 January, 2026
2026:BHC-NAG:57
1 arb.apeal 35.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
ARBITRATION APPEAL NO. 35 OF 2024
IND INFOTECH SERVICES,
having its registered office at Plot
No.4, Ayodhya Nagar, Nagpur -440024,
through its Proprietor, Rajesh Ushekwar,
Aged 56 years, Occupation - Business,
Resident of Flat No. 202, Plot No., 4,
Shivdatta Apartment, Opposite Petrol
Pump, Ring Road, Trimurty Nagar,
Parsodi, Nagpur - 440022 (M.S.). .... APPELLANT
VERSUS
(1) Union of India,
through Ministry of Railways,
Rail Bhavan 1, Raisina Road,
New Delhi, Delhi, India.
(2) The Deputy Chief Engineer
(Construction) I, Western Railway
(Survey & Construction), Kothi
Compound, Rajkot, Gujarat - 360001. .... RESPONDENTS
______________________________________________________________
Mr. U.A. Gosavi, Counsel for the appellant,
Mrs. Suhasini N. Deshpande, Counsel for the respondents.
______________________________________________________________
CORAM : NIVEDITA P. MEHTA, J.
DATE OF RESERVING THE JUDGMENT : 19-12-2025
DATE OF PRONOUNCING THE JUDGMENT : 06-01-2026.
JUDGMENT :
Heard.
2 arb.apeal 35.24.odt
2. The appellant has taken exception to the order dated 20-04-
2024, passed on an application under Section 9 of the Arbitration and
Conciliation Act, 1996, seeking interim measures, whereby the prayer
for interim reliefs was rejected and the application came to be
dismissed by the learned District Judge-8, Nagpur.
3. It is the case of the appellant that it is a proprietary concern
experienced in the field of survey, large-volume data conversion and
digitisation in CAD/GIS, data attachment, programming, image
processing and feature extraction from satellite imagery, land-use and
land-cover mapping, contour and resource mapping, photogrammetry,
AIM/FM applications, etc. It is further the case of the appellant that it
undertakes almost all kinds of mapping activities using Differential
Global Positioning System (DGPS) and web-based Geographic
Information Systems, including software development.
4. Respondent No. 2, on 24-11-2022, published a tender on its
website bearing Tender No. DYCERCRJT-SUNR-RJT-49-RI, calling
upon bidders to submit online bids for updating and reconciling land
plans, certification by Revenue Authorities, and computerisation/
digitisation of land plans under Rajkot and Morbi Districts in
connection with the Surendranagar-Rajkot Doubling Project, having a
value of Rs. 80,27,545.20/-.
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5. The appellant emerged as the successful bidder and was called
for negotiations, pursuant to which a work order was issued. A revised
acceptance was issued on 20-03-2023 in favour of the appellant and
was received by the appellant at Nagpur by email on the same date.
The appellant acknowledged the Letter of Acceptance and submitted its
work methodology.
6. The tender contract is governed by the Indian Railways General
Conditions of Contract (IRGCC) dated 24-11-2022. As per Clause 16(4)
of the IRGCC, the successful bidder is required to submit a Performance
Guarantee within 21 days from the date of issuance of the Letter of
Acceptance. Extension may be granted beyond 21 days and up to 60
days from the issuance of the Letter of Acceptance by the competent
authority signing the contract. It is further provided that if the
successful bidder fails to submit the Performance Guarantee within a
period of 60 days, the contract can be terminated by Respondent No. 2.
7. On 06-04-2023, the appellant sought oral permission for
extension of time to submit the Performance Guarantee, which was
extended by the competent authority. The appellant issued the
Performance Guarantee on 17-05-2023, issued by Canara Bank, valid
for the period from 17-05-2023 to 16-05-2024. The appellant states
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that the Performance Guarantee was sent through WhatsApp on
17-05-2023, and thereafter, a physical copy of the same was also
dispatched. It is claimed that the said Performance Guarantee was
accepted by the respondents.
8. The appellant further states that it commenced the work from
20-03-2023 and was required to complete the same within a period of
six months from the date of the Letter of Acceptance, i.e., on or before
20-09-2023. On 17-07-2023, by written communication, the appellant
informed that 70% to 80% of the work had been completed and
expressed its intention to raise the first running bill.
9. After receipt of the said letter, it is contended that Respondent
No. 2, by letter dated 27-07-2023, terminated the work awarded to the
appellant on the ground that the appellant failed to submit the
Performance Guarantee within a period of 60 days from the date of the
Letter of Acceptance, thereby breaching the contractual conditions. The
appellant claims to have suffered huge losses due to the alleged illegal
termination of the contract.
10. It is further stated that the bid was submitted from Nagpur, all
communications including the Letter of Acceptance were received at
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Nagpur, and the termination of contract was also received by the
appellant at Nagpur. On 08-08-2023, the appellant issued a notice
invoking the arbitration clause, as disputes had arisen. Simultaneously,
after the respondents failed to appoint an arbitrator, the appellant filed
an application under Section 11 of the Act and also preferred an
application under Section 9 of the Act, praying for restraint against the
respondents from awarding the balance work to any other contractor
or agency and for securing the amount allegedly due.
11. Initially, at the stage of issuance of notice, the learned Court
below, by order dated 27-09-2023, restrained the respondents by way
of ad-interim injunction from finalising the tender process for a limited
period. Upon appearance of the respondents and filing of reply, the
application was taken up for final hearing and, by the impugned order,
the application came to be dismissed.
12. Upon issuance of notice, the respondents entered appearance
and filed their reply. The primary objection raised by the respondents is
that, in view of Clause 13 of the tender document, the jurisdiction of
Courts at Nagpur is expressly excluded, and therefore the appellant has
no locus to invoke the jurisdiction of any Court in the State of
Maharashtra. The respondents heavily relied upon Clause 13 of the
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tender document, which confers jurisdiction upon specified courts in
the State of Gujarat. It is contended that, having signed the tender
document and agreed to the jurisdiction clause, the appellant cannot
invoke the jurisdiction of courts in Maharashtra.
13. On merits, the respondents vehemently contended that the
Performance Guarantee was not submitted within the stipulated period.
It is the case of the respondents that the Performance Guarantee was
received by Respondent No.2 on 23-05-2023 through Nandan Courier.
As per the tender conditions, the original Performance Guarantee was
required to be received in the office of the tender-accepting authority
within a period of 60 days from the issuance of the Letter of
Acceptance. Therefore, it is submitted that Respondent No. 2 rightly
terminated the contract in accordance with Clause 16(4).
14. I have heard the learned Counsel for the parties. The learned
Counsel for the appellant submitted that the Performance Guarantee
was submitted pursuant to oral permission granted for extension by
Respondent No. 2. It is contended that the Performance Guarantee was
first sent through WhatsApp and was duly acknowledged, and
thereafter sent by courier. It is argued that the learned Court below
failed to consider that the acceptance of the tender was communicated
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at Nagpur and that the termination order was also communicated to
the appellant at Nagpur by EMS Speed Post, thereby conferring
jurisdiction on Courts at Nagpur.
15. It is further contended that the learned Court below committed a
serious error in holding that the Performance Guarantee was not
accepted by Respondent No. 2 and that the termination was proper.
The appellant asserts that had the Performance Guarantee not been
accepted, the respondents would not have verified its authenticity from
Canara Bank. It is argued that the findings on merits recorded by the
learned Court below are contrary to the scope of Section 9 of the Act,
particularly when the work had already commenced.
16. Reliance is placed by the appellant on a judgment of the Hon'ble
Supreme Court reported in Aglowmed Ltd. v. Shell Life Sciences Pvt.
Ltd., 2013 (3) MHLJ 648, to contend that apart from the cause of
action arose at Nagpur, the Courts at Nagpur shall have jurisdiction.
17. Per contra, the learned Counsel for the respondents submitted
that Clause 13 of the tender document clearly stipulates that the tender
process shall be governed by the laws of India and that Courts in
Gujarat, namely Vadodara, Ahmedabad, Rajkot and Bhavnagar
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Divisions, shall have exclusive jurisdiction in respect of disputes arising
out of the tender process. It is submitted that since the tender pertains
to Gujarat, only Courts in Gujarat have jurisdiction.
18. On merits, it is submitted that the Performance Guarantee was
required to be received by the tender-accepting authority within 60
days from the date of issuance of the Letter of Acceptance dated
20-03- 2023, and even assuming extension, the outer limit expired on
18-05-2023. The respondents deny receipt of any valid Performance
Guarantee through WhatsApp and contend that WhatsApp
correspondence is not legally authenticated.
19. Reliance is placed by the respondents on several judgments,
including SmithKline Beecham Consumer Healthcare GMBHY & Ors. v.
Hindustan Lever Ltd. & Anr., 2002 (1) Mh.L.J. 453; Nagubai Ammal &
Ors. V. B. Shama Rao & Ors., AIR 1956 SC 593; and R.N. Gosain v.
Yashpal Dhir, (1992) 4 SCC 683, and other authorities, to contend that
once a party has agreed to an exclusive jurisdiction clause, it is
estopped from resiling therefrom and further to contend principles of
estoppel and approbate and reprobate. The learned Counsel further
placed reliance to contend that that the principle of approbate and
reprobate comes into force as the appellant itself has elected
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jurisdiction to a particular court in a particular place, and therefore the
appellant is stopped from agitating the issue of jurisdiction again and
again.
20. Heavy reliance is placed on the judgment of the Hon'ble
Supreme Court in M/s. Activitas Management Advisor Pvt. Ltd. V. Mind
Plus Healthcare Pvt. Ltd., [SLP (C) NO. 27714 Of 2024] decided on
05-08-2025, to contend that where exclusive jurisdiction is conferred,
proceedings must be initiated only before the courts so designated.
21. I have perused Clause 13 of the tender document. The said
clause unequivocally provides that Courts in Gujarat, particularly
Rajkot Division, shall have exclusive jurisdiction over all disputes
arising under or in connection with the tender process. The subject
tender pertains to the Surendranagar-Rajkot Doubling Project. A bare
perusal of Clause 13 leaves no manner of doubt that Courts outside
Gujarat are expressly excluded.
22. It is well settled that when parties have consciously agreed to an
exclusive jurisdiction clause, only the Courts so designated can exercise
jurisdiction. The judgment of the Hon'ble Supreme Court in M/s.
Activitas Management Advisor Pvt. Ltd. (supra) reiterates this position.
10 arb.apeal 35.24.odt
23. The contention of the appellant that a bundle of facts arose at
Nagpur cannot override the express exclusive jurisdiction clause. Mere
occurrence of certain events at Nagpur does not confer jurisdiction
where the parties have contractually excluded such jurisdiction.
24. I, therefore, find substance in the submissions of the learned
Counsel for the respondents. However, it must be observed that once
the Court finds that it lacks jurisdiction, it ought not to have recorded
findings on merits. Enquiry into factual disputes, such as submission of
the Performance Guarantee within time, was unwarranted once
jurisdiction was found lacking.
25. In view of the above, I am of the considered opinion that Courts
at Nagpur do not have jurisdiction to entertain disputes arising out of
or in connection with the subject tender. It is clarified that the
observations on merits shall not prejudice the appellant in any
proceedings initiated before a Court of competent jurisdiction, and
such proceedings shall be decided independently on their own merits.
Hence, I proceed to pass following order:
ORDER
The appeal preferred by the appellant against the judgment and
order dated 20-04-2024 passed in Arbitration Case No. 149 of 2023 by
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the learned District Judge-8, Nagpur, stands dismissed. No order as to
costs.
( NIVEDITA P. MEHTA, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 06/01/2026 14:54:15
