[Cites 26, Cited by 0]
Delhi High Court
Moonwalk Infra Projects Pvt Ltd vs M/S Onstruq Interlayer Private Limited on 17 March, 2026
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on:14.11.2025
Judgment pronounced on:17.03.2026
+ ARB. P. 1139/2025
MOONWALK INFRA PROJECTS PRIVATE LIMITED....Petitioner
Through: Mr. Rajeev Kumar, Advocate
versus
M/A ONSTRUQ INTERLAYER PRIVATE LIMITED ....Respondent
Through: Mr. Anish Maheshwari, Mr.
Aayushmaan Vatsyayana, Mr. Manas
Tripathi, Mr. Vijay Kumar Maurya, Mr.
Harsha Vinoy, Advocates
+ ARB. P. 1335/2025 & I.A. 26923/2025
MOONWALK INFRA PROJECTS PRIVATE LIMITED....Petitioner
Through: Mr. Rajeev Kumar, Advocate
versus
M/A ONSTRUQ INTERLAYER PRIVATE LIMITED ....Respondent
Through: Mr. Anish Maheshwari, Mr.
Aayushmaan Vatsyayana, Mr. Manas
Tripathi, Mr. Vijay Kumar Maurya, Mr.
Harsha Vinoy, Advocates
Digitally Signed
By:MAYANK
Signing Date:17.03.2026
18:21:54 ARB. P. 1139/2025 & ARB. P. 1335/2025 Page 1 of 24
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
1. These are petitions filed under Section 11(6) of the Arbitration and
Conciliation Act, 1996 ("1996 Act"), seeking appointment of a Sole
Arbitrator for adjudication of disputes between the parties arising out of a
Techno Commercial Offer dated 08.11.2023 and Work Orders dated
12.02.2024 being subject matter of ARB. P. 1139/2025 and Techno
Commercial Offer dated 25.09.2023 and Work Orders dated 16.10.2023
being subject matter of ARB. P. 1335/2025.
FACTUAL BACKGROUND
2. The petitioner is a private limited company dealing in the supply, design
and erection of prefabricated buildings.
3. The respondent was awarded the contract for the civil, supply and
erection of a pre-fabricated building at two separate projects namely:
a. Sri City, Chittoor, Andhra Pradesh ("project I") by M/s NX
Logistics Pvt. Ltd. (ARB. P. 1139/2025)
b. Logos Luhari Logistics Estate Block Nos. 0311, 0312 and 0313,
VPO Luhari, Pataudi, Kulana Road, Luhari Haryana ("project
II") (ARB. P. 1335/2025)
4. In relation to project I, pursuant to an inquiry by the respondent, the
petitioner submitted a proposal bearing reference No. QN2300986, being
Techno Commercial Offer dated 08.11.2023, containing the necessary
building layout, dimensions and design loads as per the respondent‟s
inquiry to award a sub contract for the project. Similarly, in relation to
project II, pursuant to an inquiry by the respondent, the petitioner
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By:MAYANK
Signing Date:17.03.2026
submitted a proposal bearing No. QN2300864, being Techno Commercial
Offer dated 25.09.2023, in accordance with building layouts overall
dimensions and design loads provided by the respondent.
5. After detailed discussions on the proposals submitted by the petitioner,
the parties agreed to the terms and conditions of the respective Techno-
Commercial Offers ("TCOs") dated 08.11.2023 and 25.09.2023 In
furtherance thereof, the respondent issued Work Orders for supply and
erection namely:
a. Two Work Orders dated 12.02.2024 in respect of project I
b. Two Work Orders dated 16.10.2023 in respect of project II
6. The TCO for Project I contained an Arbitration clause under the heading
of Governing Law, which reads as under:
"GOVERNING LAW
This Agreement shall be construed and enforced in
accordance with and under the laws of the Government of
India. Both parties agree that in case of any difference or
dispute arising between the MOONWALK
INFRAPROJECTS PVT. LTD. and the BUYER will be
resolved by mutual discussions and agreement. However,
unresolved issues, if any, will be settled by arbitration as
per the Indian Arbitration and Conciliation Act, and the
venue of the arbitration will be Delhi, India. Further for any
change in the venue of arbitration, BUYER need to ensure
that Moonwalk Infraprojects Pvt. Ltd. had accepted the
same in writing that too explicitly mentioning the same
clearly. In case, if it is not available then the venue of
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By:MAYANK
Signing Date:17.03.2026
arbitration shall remain New Delhi only."
7. The TCO for Project II also contained an Arbitration Clause under the
same heading Governing Law:
"GOVERNING LAW
This Agreement shall be construed and enforced in
accordance with and under the laws of the Government of
India. Both parties agree that in case of any difference or
dispute arising between the MOONWALK
INFRAPROJECTS PVT. LTD. and the BUYER will be
resolved by mutual discussions and agreement. However,
unresolved issues, if any, will be settled by arbitration as
per the Indian Arbitration and Conciliation Act, and the
venue, of the arbitration will be Delhi, India."
8. In respect of Project I, as per the Work Orders the total cost of supply was
agreed to be Rs. 11,65,74,071/- and total cost of erection was agreed to be
Rs. 73,25,928.52/-, exclusive of GST. Further the terms of the payment
and total tonnage for supply were agreed between the parties. Similarly,
in respect of Project II, as per the Work Orders, the value of supply
contract was Rs. 7,60,50,378/- and the value of erection contract was Rs.
1,13,55,307/-. The payment terms were also agreed between the parties.
9. In the project I, as per the contractual arrangement, the petitioner
undertook supply and erection works in respect of the project and
constructed a building/warehouse. Certain snag points were recorded
during the course of completion. It is the case of the petitioner that that
the snag points raised by the Project Management Consultant were
rectified. Even if any minor snag items remained, the cost of rectification
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By:MAYANK
Signing Date:17.03.2026
would not exceed Rs. 50,000/-. Yet the respondent withheld an amount of
Rs. 1,49,16,574/- on account of the alleged snag points. Furthermore, the
payments released during the execution and completion of project were
not so done in accordance with the agreed terms.
10. As for the Project II, it is the petitioner‟s case that the supply and erection
work was completed and certain strengthening work remained. However,
due to non-payment of the outstanding dues to the tune of Rs.1.47 crores,
the work could not be carried out any further. The respondent did not
make the required payment and thereafter, terminated the contract on
18.06.2025 while withholding the above said amount.
11. Since there were disputes between the parties, the petitioner invoked
arbitration vide legal notices namely:
a. Notice dated 12.03.2025 in relation to project I
b. Notice dated 02.07.2025 in relation to project II.
The respondent replied to the said legal notices raising objections. The
respondent further failed suggest any name for appointment of Sole
Arbitrator. Hence, the present petitions.
SUBMISSIONS ON BEHALF OF THE PETITIONER
12. Mr. Rajeev Kumar, learned counsel for the petitioner, submits that the
respondent does not dispute the TCOs or the existence of the arbitration
clause contained under the heading Governing Laws thereof. Thus, the
petition satisfies the "prima facie" or "first look" test with regard to the
existence of a valid arbitration agreement.
13. He states that the TCOs and the subsequent Work Orders constitute a
series of written communications between the parties, thereby satisfying
the requirement under Section 7(4)(b) of the 1996 Act, which recognises
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Signing Date:17.03.2026
an arbitration agreement arising through an exchange of letters or other
documents providing a record of the agreement. Further, the Work Orders
expressly record that they are based on the TCOs dated 08.11.2023and
25.09.2023. Thus, by virtue of Section 7(5) of the 1996 Act, the
arbitration clauses contained in the said TCOs stand incorporated by
reference into the Work Orders. Since, the parties acted upon the Work
Orders, such performance amounts to acceptance by conduct.
Consequently, the arbitration clause contained in the TCOs form part of
the contractual agreement between the parties and is binding upon them.
14. He relies on the judgment of this Court in Sanghvi Movers Ltd. v. Vivid
Solaire Energy Pvt Ltd, ARB. P. 859/2022 and states that where a
principal contract contains an arbitration clause, subsequent purchase
orders issued on the basis of such contract would be governed by the
arbitration clause, even if the clause is not reproduced verbatim in the
purchase orders. When purchase orders are issued based on the
underlying contract, the terms and conditions of the principal contract,
including the arbitration clause, would apply to the parties.
15. He further relies on Balasore Alloys Ltd. v. Medima LLC (2020) 9 SCC
136 and states that the said decision is squarely applicable on the present
case. The Hon‟ble Supreme Court, while adjudicating legal issue with
respect to the arbitration clauses in a principal agreement and subsequent
purchase orders, held that in such circumstances the Court must
harmonise the parallel clauses and give effect to the arbitration clause
contained in the comprehensive and governing document that regulates
the transaction as a whole. In the present case the TCOs constitutes the
comprehensive and foundational document setting out all material terms
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Signing Date:17.03.2026
and conditions of the project, including the arbitration clause. The
subsequent Work Orders are merely derivative instruments issued for
execution of the works and are expressly based upon the said TCOs.
Accordingly, the arbitration clause contained in the TCOs would prevail
and govern the disputes between the parties.
16. Learned counsel for the petitioner states the respondent, having accepted
the supplies, released payments thereunder, and having derived benefits
under the same contractual framework, cannot now be permitted to deny
the applicability of the arbitration clause forming part of that very
framework. The conduct of the respondent clearly demonstrates
affirmation and acceptance of the TCOs and its terms, including the
arbitration clause. Having acted upon the TCOs and enjoyed its benefits,
the respondent is estopped from repudiating the arbitration clause in the
TCOs at this stage.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
17. Mr. Anish Maheshwari, learned counsel for the respondent, states in the
facts and circumstances of the present case, the disputes are not liable to
be referred to arbitration inasmuch as there exists no valid and binding
arbitration clause between the parties, as contemplated under the
provisions of the 1996 Act. Neither there is any concluded arbitration
clause nor even a promise between the parties to refer disputes to
arbitration, as mandatorily required under the 1996 Act. In the absence of
such an agreement, the present petition seeking reference to arbitration is
therefore, misconceived and not maintainable.
18. He states that, in the facts and circumstances of the present case, the
purported TCOs dated 08.11.2023 and 25.09.2023 of the petitioner,
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Signing Date:17.03.2026
which is stated to contain an arbitration clause, do not constitute an
"agreement" under the fundamental principles of the Indian Contract Act,
1872 ("ICA"). The said proposals, i.e. the TCOs, never received any
assent/acceptance from the respondent and, therefore, does not constitute
"promise" or "agreement" as contemplated under Section 2 of the ICA. A
conjoint reading of Sections 2(a), 2(b), and 2(e) ICA makes it abundantly
clear that unless a proposal is accepted, it does not become a promise; and
in the absence of a promise, there can be no agreement in the eyes of law.
19. It is submitted that in the present case, the purported proposals remained
at preliminary stage and never crystallised into a promise, much less an
agreement. The respondent has never conveyed its acceptance to the said
proposals. There is no document on record evidencing such acceptance.
The purported proposals do not bear the signature of any authorised
representative of the respondent, nor is there any exchange of document
evidencing acceptance so as to constitute binding agreements.
Consequently, the requirements of Section 7 of the 1996 Act are not
satisfied.
20. He further states that Section 7(1) of the 1996 Act defines an arbitration
agreement to mean an agreement by the parties to submit disputes to
arbitration. Thus, the foundational requirement is the existence of a valid
and concluded agreement between the parties. In the absence of a
concluded contract, there can be no valid arbitration agreement. In the
present case, since the purported proposals do not even attain the status of
a promise under the ICA, the arbitration clauses contained therein cannot
be treated as a binding arbitration agreement within the meaning of
Section 7 of the 1996 Act.
Digitally Signed
By:MAYANK
Signing Date:17.03.2026
21. Without prejudice to the above submissions, the learned counsel for the
respondent states that Section 7 of the ICA mandates that, in order to
convert a proposal into a promise, the acceptance must be absolute and
unqualified. Any conditional or qualified response does not amount to a
valid acceptance in the eyes of law. Thus, even assuming, arguendo, that
the petitioner seeks to rely upon any alleged acceptance by the respondent
of the purported proposals, which containthe alleged arbitration clauses,
the same cannot be construed as an absolute and unqualified acceptance
as required under law. There are no specific averments in the petitions
demonstrating that the respondent conveyed an unequivocal and
unconditional acceptance of the said proposals. In the absence of such
absolute acceptance, the proposals could not have become a promise. In
this regard, reliance is placed upon the judgment of the Hon‟ble Supreme
Court of India in Padia Timber Company Private Limited v. Board of
Trustees of Visakhapatnam Port Trust (2021) 3 SCC 24.
22. He states that Section 6(2) of ICA expressly provides that a proposal
stands revoked by the lapse of the time prescribed therein for its
acceptance. Without prejudice to the earlier submissions, it is contended
that the purported TCOs dated 08.11.2023 and 25.09.2023, contained
specific clauses being Proposal Validity, stipulating that the proposal
would remain valid for a period of three days from the date thereof,
unless extended in writing. No such extension was ever granted.
Accordingly, the time for acceptance of the proposals expired on
11.11.2023 and 28.09.2023 respectively. Since the respondent did not
accept the proposals within the stipulated period, the proposals stood
revoked by operation of law in terms of Section 6(2) of the ICA.
Digitally Signed
By:MAYANK
Signing Date:17.03.2026
23. Once the proposals lapsed and stood revoked by the operation of law, it
became a dead and unenforceable offer in the eyes of law. A revoked
proposal cannot subsequently be converted into a promise or an
agreement. Consequently, the said proposals cannot be relied upon as
constituting binding agreements within the meaning of Section 7 of the
1996 Act. The Work Orders are the only concluded contracts between the
parties and the said Work Orders do not contain any arbitration clause,
nor do they reflect any intention to submit disputes to arbitration. A mere
general reference to the purported Proposal in the Work Orders does not
amount to incorporation of the arbitration clause. In terms of Section 7(5)
of the 1996 Act, incorporation by reference requires a clear and specific
intention to incorporate the arbitration clause. Reliance is placed on the
judgment of the Hon‟ble Supreme Court of India in NBCC (India)
Limited v. Zillion Infraprojects Private Limited (2024) 7 SCC 174.
ANALYSIS AND FINDINGS
24. I have heard the learned counsel for the parties and perused the material
on record.
25. The question that arises for consideration is whether the arbitration clause
in the said TCOs are incorporated by reference in the Work Orders.
26. Before examining the question in hand, it is important to set out the scope
of Section 11 of the 1996 Act. In Interplay Between Arbitration
Agreements under Arbitration, 1996 & Stamp Act, 1899, In re, (2024) 6
SCC 1, the Hon‟ble Supreme Court categorically held that the scope of
examination at the stage of appointment of an Arbitrator is limited to a
prima facie assessment of the existence of a valid arbitration agreement:
"81. One of the main objectives of the Arbitration Act is to
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minimise the supervisory role of Courts in the arbitral
process. Party autonomy and settlement of disputes by an
Arbitral Tribunal are the hallmarks of arbitration law.
Section 5 gives effect to the true intention of the parties to
have their disputes resolved through arbitration in a quick,
efficient and effective manner by minimising judicial
interference in the arbitral proceedings. [Food Corpn. of
India v. Indian Council of Arbitration, (2003) 6 SCC 564.]
Parliament enacted Section 5 to minimise the supervisory
role of Courts in the arbitral process to the bare minimum,
and only to the extent "so provided" under the Part I of the
Arbitration Act. In doing so, the legislature did not
altogether exclude the role of Courts or judicial authorities
in arbitral proceedings, but limited it to circumstances
where the support of judicial authorities is required for the
successful implementation and enforcement of the arbitral
process. [Union of India v. Popular Construction Co.,
(2001) 8 SCC 470; P. Anand Gajapathi Raju v. P.V.G. Raju,
(2000) 4 SCC 539] The Arbitration Act envisages the role of
Courts to "support arbitration process" [Swiss Timing Ltd.
v. Commonwealth Games 2010 Organising Committee,
(2014) 6 SCC 677 : (2014) 3 SCC (Civ) 642] by providing
necessary aid and assistance when required by law in
certain situations."
27. A similar position was reiterated in SBI General Insurance Co. Ltd.v.
Krish Spinning, 2024 SCC OnLine SC 1754 and Goqii Technologies
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Private Limited v. Sokrati Technologies Private Limited, (2025) 2 SCC
192 where the Hon‟ble Supreme Court observed that the Arbitrator
should be the preferred first authority to look into the questions of
arbitrability and jurisdiction, and the courts at the referral stage should
not get into contested questions involving complex facts.
28. In the context of the present case, it also becomes necessary to delineate
the contours of the doctrine of incorporation of arbitration clause by
reference in contractual documents. The law regarding incorporation of
arbitration clause through reference is well settled in Inox Wind Ltd. v.
Thermocables Ltd., (2018) 2 SCC 519 and the relevant paragraphs read
as under:
"8. This Court also discussed the scope of Section 7(5) of
the Act and summarised as follows: (M.R. Engineers case
[M.R. Engineers & Contractors (P) Ltd. v. Som Datt
Builders Ltd., (2009) 7 SCC 696 : (2009) 3 SCC (Civ) 271] ,
SCC p. 707, para 24)
"24. The scope and intent of Section 7(5) of the Act
may therefore be summarised thus:
(i) An arbitration clause in another document, would
get incorporated into a contract by reference, if the
following conditions are fulfilled:
(1) the contract should contain a clear reference to the
documents containing arbitration clause,
(2) the reference to the other document should clearly
indicate an intention to incorporate the arbitration
clause into the contract,
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(3) the arbitration clause should be appropriate, that is
capable of application in respect of disputes under the
contract and should not be repugnant to any term of
the contract.
(ii) When the parties enter into a contract, making a
general reference to another contract, such general
reference would not have the effect of incorporating
the arbitration clause from the referred document into
the contract between the parties. The arbitration clause
from another contract can be incorporated into the
contract (where such reference is made), only by a
specific reference to arbitration clause.
(iii) Where a contract between the parties provides that
the execution or performance of that contract shall be
in terms of another contract (which contains the terms
and conditions relating to performance and a provision
for settlement of disputes by arbitration), then, the
terms of the referred contract in regard to
execution/performance alone will apply, and not the
arbitration agreement in the referred contract, unless
there is special reference to the arbitration clause also.
(iv) Where the contract provides that the standard form
of terms and conditions of an independent trade or
professional institution (as for example the standard
terms and conditions of a trade association or
architects association) will bind them or apply to the
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Signing Date:17.03.2026
contract, such standard form of terms and conditions
including any provision for arbitration in such
standard terms and conditions, shall be deemed to be
incorporated by reference. Sometimes the contract may
also say that the parties are familiar with those terms
and conditions or that the parties have read and
understood the said terms and conditions.
(v) Where the contract between the parties stipulates
that the conditions of contract of one of the parties to
the contract shall form a part of their contract (as for
example the general conditions of contract of the
Government where the Government is a party), the
arbitration clause forming part of such general
conditions of contract will apply to the contract
between the parties.
xxxx
13. The dispute that arose in that case was whether general
words mentioned above were capable of incorporating an
arbitration clause. The difference in approach between
cases in which the parties incorporate the terms of a
contract between the other parties or between one of them
with a third party on the one hand and those in which they
incorporate the standard terms on the other hand, was
noticed. The following broad categories in which the parties
attempt to incorporate an arbitration clause were
recognised by the Court, which are as follows: (Habas case
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[Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v.
Sometal SAL, 2010 Bus LR 880 : 2010 EWHC 29 (Comm)] ,
Bus LR p. 886, para 13)
"(1) A and B make a contract in which they incorporate
standard terms. These may be the standard terms of one
party set out on the back of an offer letter or an order, or
contained in another document to which reference is made;
or terms embodied in the rules of an organisation of which
A or B or both are members; or they may be terms standard
in a particular trade or industry.
(2) A and B make a contract incorporating terms previously
agreed between A and B in another contract or contracts to
which they were both parties.
(3) A and B make a contract incorporating terms agreed
between A (or B) and C. Common examples are a bill of
lading incorporating the terms of a charter to which A is a
party; reinsurance contracts incorporating the terms of an
underlying insurance; excess insurance contracts
incorporating the terms of the primary layer of insurance;
and building or engineering sub-contracts incorporating the
terms of a main contract or sub-sub-contracts incorporating
the terms of a sub-contract.
(4) A and B make a contract incorporating terms agreed
between C and D. Bills of lading, reinsurance and
insurance contracts and building contracts may fall into this
category."
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Signing Date:17.03.2026
xxxx
14. In Habas case [Habas Sinai Ve Tibbi Gazlar Isthisal
Endustri AS v. Sometal SAL, 2010 Bus LR 880 : 2010
EWHC 29 (Comm)] , Christopher Clarke, J. followed the
ratio in The Athena [Sea Trade Maritime Corpn. v. Hellenic
Mutual War Risks Assn. (Bermuda) Ltd. No. 2, 2007 Bus LR
D 5 : 2006 EWHC 2530 (Comm)] and held that in single-
contract cases (Categories 1 and 2), a general reference
would be sufficient for incorporation of an arbitration
clause from a standard form of contract. In cases falling
under Categories 3 and 4 mentioned above which are two-
contract cases, it was held that a stricter rule has to be
followed by insisting on a specific reference to the
arbitration clause from an earlier contract...."
xxxx
17. "....The development of law regarding incorporation
after the judgment in M.R. Engineers [M.R. Engineers &
Contractors (P) Ltd. v. SomDatt Builders Ltd., (2009) 7
SCC 696 : (2009) 3 SCC (Civ) 271] requires careful
consideration. It has been held in Habas Sinai Ve Tibbi
Gazlar Isthisal Endustri AS v. Sometal SAL [Habas Sinai Ve
Tibbi Gazlar Isthisal Endustri AS v. Sometal SAL, 2010 Bus
LR 880 : 2010 EWHC 29 (Comm)] that a standard form of
one party is also recognised 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
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arbitration clause from a standard form of contract. There
is no distinction that is drawn between standard forms by
recognised trade associations or professional institutions on
one hand and standard terms of one party on the other.
Russell on Arbitration, 24th Edn. (2015) also takes note of
Habas case [Habas Sinai Ve Tibbi Gazlar Isthisal Endustri
AS v. Sometal SAL, 2010 Bus LR 880 : 2010 EWHC 29
(Comm)].
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 [M.R. Engineers &
Contractors (P) Ltd. v. Som Datt Builders Ltd., (2009) 7
SCC 696 : (2009) 3 SCC (Civ) 271] 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
[M.R. Engineers & Contractors (P) Ltd. v. Som Datt
Builders Ltd., (2009) 7 SCC 696 : (2009) 3 SCC (Civ) 271]
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 Edn. (2015)
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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
[M.R. Engineers & Contractors (P) Ltd. v. Som Datt
Builders Ltd., (2009) 7 SCC 696 : (2009) 3 SCC (Civ) 271] .
We are in agreement with the judgment in M.R. Engineers
case [M.R. Engineers & Contractors (P) Ltd. v. Som Datt
Builders Ltd., (2009) 7 SCC 696 : (2009) 3 SCC (Civ) 271]
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."
(emphasis supplied)
29. With that scope in mind, I shall now deal with the facts of the present
case.
30. In the present case, in project I, the Work Order dated 12.02.2024 issued
by the respondent records the reference to TCO dated 08.11.2023 and
reads as under:
"...With reference to your quotation no. 2300986,8-1,R-2
dated 08 November 2023 and final negotiation in last
meeting, we are Pleased to intimate you that your final offer
to supply of Pre Engineered Building material for
230262.82 sqft @ Rs 429.03/- per Sqft (Rupees Four
hundred fifty only) has been accepted and supply order is
awarded to you based on the technical specification shared
by you and payment terms & conditions as mentioned in
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Purchase Order..."
Further,the second Work Order dated 12.02.2024 also records the same
reference and reads as under:
"...With reference to your quotation no. 2300986,B-1,R-2
dated 08 November 2023 and final negotiation in last
meeting, we are Pleased to intimate you that your final offer
to Erection of Pre Engineered Building material for
230262.82 sqft @ Rs 26.962/- per Sqft (Rupees Four
hundred fifty only) has been accepted and supply order is
awarded to you based on the technical specification shared
by you and payment terms & conditions as mentioned in
Purchase Order..."
31. Similarly, in project II, Work Order dated 16.10.2023 issued by the
respondent records the reference to the TCO dated 25.09.2023 also
records as follows:
"...with reference to your quotation no. 2300864, B-1, R-4
dated 25.09.2023 and final negotiations in the last meeting,
we are pleased to intimate you that your final offer to supply
of Pre-Engineered Building material for 164596.90 sq. ft. @
Rs. 391.56 per sq. ft. for Block-G has been accepted and
supply order is awarded to you based on the technical
specification shared by you..."
The second Work Order dated 16.10.2023 also records the same reference
and reads as under:
"...With reference to your quotation no. 2300864, B-1, R-4
dated 25.09.23 and final negotiation in last meeting, we are
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Signing Date:17.03.2026
pleased to intimate you that your final to Work order of Pre
Engineered Building material for 164596.90 sqft @ Rs
73.27/- per Sq ft for Block-G has been accepted and work
order is awarded to you based on the technical specification
shared by you and the payment terms & conditions will be
as per mentioned in Work Order...."
32. A perusal of the material placed on record indicates that the said TCOs
contained the detailed commercial and technical terms governing the
proposed transaction between the parties. The said TCOs also
incorporated the technical specifications forming part of the offer and
further, the said technical specifications contained a clause providing for
resolution of disputes through arbitration.
33. Further, the Work Orders themselves record that they were issued with
reference to the petitioner‟s TCOs and supply order was awarded to the
petitioner based on the technical specifications shared by the petitioner. It
is not in dispute that the technical specifications in the TCOs, containing
the arbitration clause, referred to in the Work Order formed part of the
said TCOs.
34. The language employed in the Work Orders clearly demonstrates that the
respondent was acting upon and accepting the petitioner‟s TCOs dated
08.11.2023 and 25.09.2023 after the final negotiations between the
parties. The Work Orders expressly acknowledged that the respondent
was pleased to intimate the petitioner that its "final offer" had been
accepted. Thus, the Work Orders do not stand in isolation but are
intrinsically linked to and founded upon the petitioner‟s TCOs. The
reference to the quotation is neither incidental nor merely descriptive;
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rather, it forms the very foundation upon which the Work Orders have
been issued. In such circumstances, the technical specifications contained
in the TCOs, including the arbitration clause, prima facie stand
incorporated into the Work Orders through reference.
35. There is no doubt that the technical specifications in the said TCOs were
not based on any standard terms and conditions of any trade association
or a professional body nor do they constitute a standard form of Contract
but the respondent was throughout aware of the technical specifications
and the arbitration clauses contained therein, based on which the Work
Orders and the Supply Orders were issued by the respondent itself. Inthe
present case, the Work Orders, in my view, fall within the category of a
„single-contract‟ category as recognised in Inox Wind Ltd.(Supra). In
such a case, a general reference to the terms forming part of the offer
would also be sufficient to incorporate the arbitration clause contained
therein. Therefore, the arbitration clause in the technical specifications of
the TCOs stand incorporated in the Work Orders.
36. At the stage it is pertinent to reiterate that while exercising jurisdiction
under Section 11 of the 1996 Act, the Court is only required to examine
whether there exists prima facie an arbitration clause between the parties.
The scope of examination at this stage is limited and the Court does not
undertake a detailed inquiry into the merits of the disputes or the final
contractual rights and obligations between the parties. Once the Court is
satisfied that the material on record indicates the existence of an
arbitration clause governing the relationship between the parties, the
matter ought to be referred to arbitration.Thus, in the present case, based
on above analysis, I am satisfied that prima facie, there exists a valid and
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enforceable arbitration clause that governs the disputes between the
parties. Thus, the test of Section 11 of the 1996 Act stands satisfied.
37. The respondent seeks to contend that the TCOs never culminated into a
concluded contract between the parties. Whether the TCOs matured into a
concluded contract, or whether the Work Orders constituted the final
contractual document governing the relationship between the parties, are
issues which would require examination of the conduct of the parties and
the surrounding circumstances and would also require detailed evidence
and analysis. Such questions involve mixed issues of fact and law and are
appropriately left to be determined by the Arbitrator. The only inquiry
that this Court, at this stage needs to conduct is with regards to the
existence of the arbitration clause and as concluded above, I am prima
facie of the opinion that a concluded arbitration agreement exists between
the parties.
38. Even assuming, arguendo, that the TCOs did not by themselves culminate
into concluded contracts and the time limit to accept the TCOs expired,
the Work Orders unequivocally records that they were issued with
reference to the petitioner‟s TCOs dated 08.11.2023 and 25.09.2023 on
the basis of the technical specifications shared by the petitioner. In other
words, the Work Orders themselves acknowledge that the petitioner‟s
TCOs formed the foundation of the said Work orders and even a
document, though not a concluded contract, executed between the parties
is sufficient to incorporate the arbitration clause in terms of the judgment
of Inox Wind Ltd. (Supra).
39. At this juncture, it is pertinent to note that the reliance placed on NBCC
(India) Limited(Supra) by the respondent is misconceived, as the factual
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matrix of the said judgment is materially distinguishable from the facts of
the present case and, therefore, does not govern the controversy at hand.
In the said judgment, the Letter of Intent expressly provided that all the
terms and conditions contained in the tender issued by the Damodar
Valley Corporation to NBCC would apply mutatis mutandis. The
Supreme Court was dealing with a situation which fell within the
category of a "two-contract case", where the Letter of Intent between the
parties made a reference to the terms of a separate contract executed
between one of the parties and a third party. In such circumstances, the
Court held that for incorporation of an arbitration clause from a contract
executed with a third party, a specific reference to the arbitration clause
and a clear consensus ad idem between the parties on such incorporation
would be necessary. The present case, however, stands on a different
footing. Here, the parties to the TCOs as well as the Work Orders are the
same, the Work Orders expressly incorporates the technical specifications
of the TCOs. The case, therefore, falls within the category of a "single-
contract case", where a reference to the underlying document containing
the arbitration clause would, prima facie, be sufficient for incorporation
by reference.
40. For the said reasons, and without commenting on the merits of the case,
the petitions are allowed and the following directions are issued:-
i) Ms. Maneesha Dhir, Advocate (Mob. No. 9810113325) is appointed
as a Sole Arbitrator to adjudicate the disputes between the parties.
ii) The arbitration will be held under the aegis and rules of the Delhi
International Arbitration Centre, Delhi High Court, Sher Shah Road,
New Delhi (hereinafter, referred to as the „DIAC‟).
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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 terms
of Section 12 of the 1996 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 claims, 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 Arbitrator.
vi) The parties shall approach the Arbitrator within two weeks from
today.
vii) Each petition shall be treated as a separate reference.
41. The petitions are disposed of in aforesaid terms.
JASMEET SINGH, J.
th
MARCH 17 , 2026/(MU)
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By:MAYANK
Signing Date:17.03.2026
