M/S Bsc Projects Pvt. Ltd vs Managing Director, Kalptaru Power ... on 20 February, 2026

Author: Sunita Agarwal

Bench: Sunita Agarwal

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                              C/ARBI.P/63/2024                           ORDER DATED: 20/02/2026

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                      R/PETN. UNDER ARBITRATION ACT NO. 63 of 2024
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                                         M/S BSC PROJECTS PVT. LTD.
                                                   Versus
                          MANAGING DIRECTOR, KALPTARU POWER TRANSMISSION LIMITED
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                       Appearance:
                       MR. ANUGRAGH EKKA, ADV., MR DEVANG K PAREKH(13457) for the
                       Petitioner(s) No. 1
                       MR. ISHAN JOSHI, ADV. FOR SINGHI & CO(2725) for the Respondent(s)
                       No. 1
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                            CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
                                  AGARWAL

                                                     Date : 20/02/2026
                                                      ORAL ORDER

It may be noted that the then Company M/s. JMC Projects (India) Ltd. which had entered into agreement dated 27.08.2011, has been amalgamated in the respondent company namely M/s. Kalpataru Power Transmission Ltd. pursuant to an order dated 29.12.2022 passed by the National Company Law Tribunal.

2. At the outset, the objection raised by the learned advocate Mr. Ishan Joshi for Singhi & Co. appearing for the respondent is about the maintainability of the present petition on the premise that the Clause-3 of the Dispute Resolution Clause in the agreement dated 27.08.2011 excludes the applicability of the Arbitration Act, 1996 and specifically provides that for seeking adjudication of any dispute in respect of any matter, general law of the land shall be attracted.

3. Reliance is placed on the decision of the Apex Court in

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C/ARBI.P/63/2024 ORDER DATED: 20/02/2026

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Alchemist Hospitals Ltd. v/s. ICT Health Technology Services India Pvt. Ltd. [2025 SCC OnLine SC 2354] to submit that there exists no arbitration clause in the agreement-in-question and the true intention of the parties to going for arbitration, cannot be discerned from the language employed in the said clause. Emphasis has been laid to the observations in paragraph No. '15(iii)' in Alchemist Hospitals Ltd.(supra), which read as under :-

"Where the clause provides that in the event of disputes arising between the parties, the disputes shall be referred to arbitration, it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words which specifically exclude any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be an arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the authority, he may file a civil suit seeking relief, it cannot be termed as an arbitration agreement."

4. Having considered the submissions of the learned advocate for the respondent raising objection to the maintainability of the present petition, at the outset, the Dispute Resolution Clause of the agreement-in-question be noted herein :-

"1. In the event of any dispute arising between JMC and the subcontractor, either party shall deliver to other party a written notice of dispute adequately identifying and providing details of the dispute. Within 15 days of receipt of the notice the parties.

2. In case the dispute is not resolved either party shall apply to the Managing Director of JMC for the appointment of the Sole Arbitrator. The M. D. of JMC himself may act as Sole Arbitrator or he may nominate an officer of JMC to act as a Sole Arbitrator.

3. MD-JMC or officer nominated by him shall only act as Sole

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Arbitrator to resolve the dispute and in case this arrangement is not possible due to one reason or the other, it shall be assumed that there is is no Arbitration Clause and general Law of Land shall

4. Where recourse to a court for help is decided in respect of any matter, the Courts at Ahmedabad shall be the exclusive jurisdiction."

5. A careful reading of the Clauses (2) and (3) in the Dispute Resolution Clause of the agreement dated 27.08.2011, indicates that it provides for resolution of the dispute through the process of arbitration. It states that in case, the dispute is not resolved on a written notice by either of the parties, such party may apply to the Managing Director of the respondent company namely JMC Projects (India) Ltd., whereupon the Managing Director of the Company himself will act as an sole arbitrator or he may nominate officer of the JMC to act as a sole arbitrator. However, in case, the aforesaid arrangement is not possible due to one or other reason, it shall be assumed that there is no arbitration clause and the general law of the land shall apply.

6. These clauses in the agreement-in-question clearly reflect the intention of the parties to enter into the arbitration agreement. It could not be disputed by the learned counsel for the respondent that the parties had intended to submit to arbitration in case of any dispute which may be arising out of the agreement at the time of its execution, the only caveat put forth in the arbitration clause was that only the Managing Director or any officer nominated by him could act as a sole arbitrator. The language of the arbitration clause that, in case, such an arrangement is not possible, it shall be assumed that there shall be no arbitration clause, cannot be read and understood to mean that the said words would specifically exclude any of the attributes of the arbitration agreement or

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contain anything that detracts from an arbitration agreement.

7. From the language of the arbitration clause under the terms of the agreement, the intention of the parties to agree to exclude the jurisdiction of the Court under general laws and going for arbitration, is clearly gathered. The respondent cannot be permitted to resile from the said terms of the contract and assert that the parties by consent had agreed to exclude the arbitration and refer the dispute to Civil Court under the general law of land. The arguments of the learned counsel for the respondent referring to the observations in the decision of the Apex Court in Alchemist Hospitals Ltd.(supra) are, therefore,turned down.

8. Even otherwise, the clauses (2) and (3) of the Dispute Resolution Clause, which provide for appointment of the Managing Director of the Company or an officer nominated by him as the sole Arbitrator, are hit by Section 12(5) of the Arbitration and Conciliation Act, 1996. Admittedly, the dispute agitated by the petitioner for invoking arbitration clause has arisen after the insertion of sub-section(5) under Section 12 of the Act No.3 of 2016 w..e.f. 23.10.2015. The respondent cannot now insists that only the Managing Director of JMC or an officer nominated by him could act as a sole Arbitrator and since the petitioner did not agree to the said terms, the present petition could not be maintained.

9. The next argument raised by Mr. Ishan Joshi for the respondent to assail the claim of the petitioner seeking to refer the dispute to arbitration, is about limitation. In the considered opinion of the Court, the said issue can very well be agitated in the Arbitratoration proceedings, as it would be beyond the jurisdiction of this Court at the pre-referral stage.







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                              C/ARBI.P/63/2024                                    ORDER DATED: 20/02/2026

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10. All the objections to the prayer made in the present petition are, therefore, rejected.

11. In view of the above, the present petition is allowed by passing the following order :-

ORDER

(i) The Petition is allowed.

(ii) Mr. V.B.Barot, retired District Judge, having address at: 104, 4th H Floor, Advait Apartment, opp.

Saurabh Society, Near Memnagar Fire Station, Navrangpura, Ahmedabad. and having E-mail ID:

[email protected] is hereby appointed as the sole Arbitrator to resolve the disputes between the parties in accordance with the Arbitration Centre (Domestic and International), High Court of Gujarat Rules, 2021. Both Parties would also be governed by said Rules.