[Cites 8, Cited by 0]
Delhi High Court
Link Infratech Pvt Ltd vs Eminent Infra Developers Pvt Ltd & Anr on 12 February, 2026
$~2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12.02.2026
+ ARB.P. 83/2026
LINK INFRATECH PVT LTD. .....Petitioner
Through: Mr. Bhavesh Kumar Sharma,
Advocate.
versus
EMINENT INFRA DEVELOPERS PVT LTD & ANR.
.....Respondents
Through: Mr. Vasu Goyal, Advocate for
R-1.
3
+ ARB.P. 212/2026
LINK INFRATECH PVT LTD .....Petitioner
Through: Mr. Bhavesh Kumar Sharma,
Advocate.
versus
EMINENT INFRA DEVELOPERS PVT LTD & ANR.
.....Respondents
Through: Mr. Vasu Goyal, Advocate for
R-1.
CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
% JUDGEMENT (ORAL)
1. The present Petitions, filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996 ["Act"], seek the appointment
of an independent Arbitrator for adjudication of disputes inter se the
parties in relation to Blocks „J‟ and „K‟, arising out of the Letters of
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
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Intent dated 18.10.2010 and 22.09.2010 ["Agreements"].
2. The said Agreements contain identical arbitration clauses, set
out in Clause 5.8.6 thereof, which read as follows:
"5.8.6. ARBITRATION.
All question or disputes or differences, claim, right, mat er or thing
whatsoever in any way arising out of or relating to this contract or
the conditions thereof otherwise concerning the works or the
execution or failure to execute the same, whether arising during the
progress of the work or after the completion or abandonment or
breach of the Contract hereof except the excepted matters as per
clause 5.8.5 of this agreement shall be referred to the Arbitration
and final decision of a single Arbitrator being a fellow of Indian
Institute of Engineers or Indian Institute of Consultant or on the
CPWD panel of Arbitrators or any panel approved by a Court of
law ofGovernmentto.be easer of disagreements to appointment of a
single arbitrator, for the arbitration of two arbitrators drawn from
the same sources as in the case of a single arbitrator mentioned
above, one to be appointed by each party, which arbitrators shall
before taking upon themselves the burden the reference appoint an
umpire. The office of Arbitrators will be in New Delhi, Where they
will sit and here all the matters referred to them for arbitration.
5.8.6.1 The Arbitrator (s) /or the Umpire as the case may. be has
have the power to open up, review and revise any certificate,
opinion, requisition or notice in regard to the excepted matters to
determine all matters in dispute which shall be submitted to then.
5.8.6.2 Subject as aforesaid, the provisions of the Arbitrator Act,
1940, or any statutory modification or re-enactment thereof an the
rules made there under and the time being in force shall apply to
the arbitration, proceeding under this clause It is a term of the
contract that the party Invoking arbitration shall specify the dispute
or disputes to be referred to arbitration on under this clause
together with the amount or amounts claimed in the contract that if
the Contractor/s does/do not make claim so in writing within 90
days of receiving the payment in case of Interim certificate and 28
days in respect of final Certificate, the claim of the Contractor (s)
will be deemed to have been waived and absolutely barred and the
Employer shall be discharged and released of all liabilities under
the contract in respect of these claims.
5.8.6.3 The Employer and the Contractor, hereby also expressly
agree that the arbitration under this clause shall be condition
precedent to any right of the action under the contract."
3. The record reveals that a common Notice under Section 21 of
the Act dated 01.08.2024 was served upon the Respondents.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
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4. Before moving to the submissions made by the parties, the law
with respect to the scope and standard of judicial scrutiny under
Section 11(6) of the Act has been fairly well settled. This Court in
Pradhaan Air Express Pvt Ltd v. Air Works India Engineering Pvt
Ltd [2025 SCC OnLine Del 3022] has, after taking into consideration
various precedents of the Hon‟ble Apex Court, extensively dealt with
the scope of interference at the stage of Section 11 of the Act. The
Court held as under:-
"9. The law with respect to the scope and standard of judicial
scrutiny under Section 11(6) of the 1996 Act has been fairly well
settled. The Supreme Court in the case of SBI General Insurance
Co. Ltd. v. Krish Spinning, while considering all earlier
pronouncements including the Constitutional Bench decision of
seven judges in the case of Interplay between Arbitration
Agreements under the Arbitration & Conciliation Act, 1996 &
the Indian Stamp Act, 1899, In re has held that scope of inquiry at
the stage of appointment of an Arbitrator is limited to the extent
of prima facie existence of the arbitration agreement and nothing
else.
10. It has unequivocally been held in paragraph no. 114 in the
case of SBI General Insurance Co. Ltd. that observations made
in Vidya Drolia v. Durga Trading Corpn., and adopted in NTPC
Ltd. v. SPML Infra Ltd., that the jurisdiction of the referral court
when dealing with the issue of "accord and satisfaction" under
Section 11 extends to weeding out ex-facienon-arbitrable and
frivolous disputes would not apply after the decision of Re :
Interplay. The abovenoted paragraph no. 114 in the case of SBI
General Insurance Co. Ltd. reads as under:--
"114. In view of the observations made by this Court
in In Re : Interplay (supra), 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 (supra) and adopted in NTPC v. SPML (supra) 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 In Re : Interplay (supra)."
11. Ex-facie frivolity and dishonesty are the issues, which have
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
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been held to be within the scope of the Arbitral Tribunal which is
equally capable of deciding upon the appreciation of evidence
adduced by the parties. While considering the aforesaid
pronouncements of the Supreme Court, the Supreme Court in the
case of Goqii Technologies (P) Ltd. v. Sokrati Technologies (P)
Ltd., however, has held that the referral Courts under Section 11
must not be misused by one party in order to force other parties to
the arbitration agreement to participate in a time-consuming and
costly arbitration process. Few instances have been delineated such
as, the adjudication of a non-existent and malafide claim through
arbitration. The Court, however, in order to balance the limited
scope of judicial interference of the referral Court with the interest
of the parties who might be constrained to participate in the
arbitration proceedings, has held that the Arbitral Tribunal
eventually may direct that the costs of the arbitration shall be borne
by the party which the Arbitral Tribunal finds to have abused the
process of law and caused unnecessary harassment to the other
parties to the arbitration.
12. It is thus seen that the Supreme Court has deferred the
adjudication of aspects relating to frivolous, non-existent
and malafide claims from the referral stage till the arbitration
proceedings eventually come to an end. The relevant extracts
of Goqii Technologies (P) Ltd. reads as under:--
"20. As observed in Krish Spg. [SBI General Insurance
Co. Ltd. v. Krish Spg., (2024) 12 SCC 1 : 2024 INSC
532], frivolity in litigation too is an aspect which the
referral court should not decide at the stage of Section 11
as the arbitrator is equally, if not more, competent to
adjudicate the same.
21. Before we conclude, we must clarify that the
limited jurisdiction of the referral courts under Section 11
must not be misused by parties in order to force other
parties to the arbitration agreement to participate in a
time consuming and costly arbitration process. This is
possible in instances, including but not limited to, where
the claimant canvasses the adjudication of non-existent
and mala fide claims through arbitration.
22. With a view to balance the limited scope of judicial
interference of the referral courts with the interests of the
parties who might be constrained to participate in the
arbitration proceedings, the Arbitral Tribunal may direct
that the costs of the arbitration shall be borne by the party
which the Tribunal ultimately finds to have abused the
process of law and caused unnecessary harassment to the
other party to the arbitration. Having said that, it is
clarified that the aforesaid is not to be construed as a
determination of the merits of the matter before us, which
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
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the Arbitral Tribunal will rightfully be equipped to
determine."
13. In view of the aforesaid, the scope at the stage of Section 11
proceedings is akin to the eye of the needle test and is limited to
the extent of finding a prima facie existence of the arbitration
agreement and nothing beyond it. The jurisdictional contours of the
referral Court, as meticulously delineated under the 1996 Act and
further crystallised through a consistent line of authoritative
pronouncements by the Supreme Court, are unequivocally confined
to a prima facie examination of the existence of an arbitration
agreement. These boundaries are not merely procedural safeguards
but fundamental to upholding the autonomy of the arbitral process.
Any transgression beyond this limited judicial threshold would not
only contravene the legislative intent enshrined in Section 8 and
Section 11 of the 1996 Act but also risk undermining the sanctity
and efficiency of arbitration as a preferred mode of dispute
resolution. The referral Court must, therefore, exercise restraint and
refrain from venturing into the merits of the dispute or adjudicating
issues that fall squarely within the jurisdictional domain of the
arbitral tribunal. It is thus seen that the scope of enquiry at the
referral stage is conservative in nature. A similar view has also
been expressed by the Supreme Court in the case of Ajay
Madhusudan Patel v. Jyotrindra S. Patel."
5. Learned counsel appearing on behalf of the Petitioner submits
that, in respect of one of the blocks, namely L-Block, learned Co-
ordinate Bench of this Court has, by Order dated 28.05.2025, already
referred the disputes between the parties to arbitration. It is contended
that the said Order, passed in proceedings arising out of the analogous
contractual framework, directed reference of the disputes to arbitration
in the following terms:
"8. For the said reasons, the petition is allowed and the
following directions are issued:-
i) The Delhi International Arbitration Centre, Delhi High Court,
Sher Shah Road, New Delhi (hereinafter, referred to as the
DIAC')will appoint an Arbitrator out of the Panel of the
Advocates maintained by the DIAC.
ii) The arbitration will be held under the aegis and rules of the
DIAC.
iii) The remuneration of the learned Arbitrator shall be in terms of
DIAC (Administrative Cost and Arbitrators' Fees) Rules, 2018.
iv) The learned Arbitrator is requested to furnish a declaration in
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
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terms of Section 12 of the Act prior to entering into the
reference.
v) It is made clear that all the rights and contentions of the parties,
including as to the arbitrability of any of the claim, any other
preliminary objection, as well as claims/counter-claims and
merits of the dispute of either of the parties, are left open for
adjudication by the learned arbitrator.
vi) The parties shall approach the DIAC within two weeks from
today."
6. It is pointed out by the parties that the appointment, in terms of
the Order dated 28.05.2025, has not yet been communicated by the
Delhi International Arbitration Centre ["DIAC"] concerning L-Block.
Accordingly, DIAC is directed to notify the parties of the appointment
of the learned Arbitrator at the earliest.
7. Learned counsel for the parties are ad idem that the present
matters may also be referred to arbitration on similar terms, by way of
appointment of a Sole Arbitrator.
8. In view of the aforesaid consensus and in the interest of
consistency, the present matters are referred to arbitration on the same
terms as contained in the Order dated 28.05.2025.
9. DIAC is accordingly directed to appoint a Sole Arbitrator from
its panel of Advocates to adjudicate the disputes in the present matters
as well.
10. The Registry is directed to forward a copy of this Order to the
learned Arbitrator through all permissible modes, including by e-mail.
11. All rights and contentions of the parties, including those relating
to claims and counter-claims, are kept open to be adjudicated by the
learned Arbitrator on their own merits and in accordance with law.
12. Needless to say, nothing in this order shall be construed as an
expression of opinion of this Court on the merits of the controversy
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
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between the parties.
13. Accordingly, the instant petitions stand disposed of.
14. A photocopy of the Order passed today be kept in the connected
matter.
HARISH VAIDYANATHAN SHANKAR, J.
FEBRUARY 12, 2026/tk/her/jk
