TABLE OF CONTENT

1. Index of Authorities...............................................................................................................2

2. Statement of Facts ...............................................................................................................3

3. Statement of Jurisdiction......................................................................................................4

4. Issues for Consideration: .....................................................................................................5

5. Summary of Arguments ........................................................................................................6

6. Written Submissions ............................................................................................................7

7.Prayer for relief....................................................................................................................16

1
 Index of Authorities
Cases

M/S. N.N. GLOBAL MERCANTILE PRIVATE LIMITED v. M/S. INDO UNIQUE FLAME LTD.
MANU/SC/0445/2023 ...................................................................................................... 13
Delhi Development Authority, New Delhi and Anr. V. Alkarma, New Delhi
MANU/DE/0204/1984 para 16 ......................................................................................... 16
M/S. N.N. GLOBAL MERCANTILE PRIVATE LIMITED v. M/S. INDO UNIQUE FLAME LTD.
MANU/SC/0445/2023 ................................................................................................. 12,14
Magic Eye Developers Pvt. Ltd. V. M/s. Green Edge Infra. Ltd. MANU/SC/0573/2023 14 9,14
Mayavati trading (P) ltd. V. pradyuat Deb Burman (2019) 8 SCC 267 ................................. 13
National Insurance Comp. Ltd. v Boghara Polyfab Private Ltd. (2009) 1 SCC 267 .............. 13
NTPC Ltd.Vs. SPML Infra Ltd MANU/SC/0341/2023.......................................................... 13
Panipat Jalandhar NH1 Tollway Pvt Ltd V. NHAI ................................................................ 17
S.B.P. & Co vs Patel Engineering Ltd. & Anr on 26 October, 2005...................................... 11
Satish kumar and ors. V. surinder kumar and ors. Manu/SC/0264/1968 ............................. 16
SBP & Co. v Patel Eng. Pvt. Ltd. & another (2005) 8SCC 618 ........................................... 13
United India Insurance Co. Ltd. & Anr.v. Hyundai Engineering and Construction Co. Ltd. &
Ors.(2018)17 SCC 607. ................................................................................................... 14
United india insurance company ltd. Vs hyundai eng. And construction comp. ltd. (2018) 17
SCC 607.......................................................................................................................... 10
Vidya Drolia Trading Corp. v Durga Trading Corp. & ors. (2021) 2 SCC 1 .......................... 14
Vidya Drolia Trading Corp. v Durga Trading Corp. & ors. (2021) 2 SCC 1 para 146 ............. 9

Statutes

Order 2 Rule 2 CPC, 1908 .................................................................................................... 7

Section 11(6A) , Arbitration and Conciliation Act , 1996 .................................................... 1, 5

Books and reports

LAW COMMISSION OF INDIA Report No. 246 Amendments to the Arbitration and
Conciliation Act 1996, pg. 43 ............................................................................................. 5
Mulla's CPC (Volume II, Fourteenth Edition) at page 894...................................................... 8
Sethi,R.P., Commentary on Law of Arbitration and Conciliation Vol. I , 2007 ........................ 4

2
 Statement of Facts
1. The present case involves a contractual dispute on the agreement between Vidyut
Shakti Corporation of India Limited (VSCIL) and Ignited Construction Private Limited
(ICPL), centred around the construction of an electricity transmission line.
2. The project consisting three phases was awarded to ICPL by VSCIL under a
construction agreement executed on 10th January, 2022. This agreement inter alia
contained a Dispute Resolution Clause for resolution of disputes through arbitration.
3. A dispute arose between VSCIL and ICPL concerning deduction made by VSCIL
from the invoices raised by ICPL on the completion of 1st Phase of work on the
ground of unsatisfactory work.
4. ICPL invoked the arbitration clause by sending a notice on 20th April 2022 for
amount Rs. 87,52,155 and reserved the right to raise any other claims in future.
5. The first arbitration proceedings commenced on 1st June 2022, constituting an
arbitral tribunal which gave its award on 21st February 2023 in favour of ICPL.
6. Following the completion of the second phase on 10th July 2022, ICPL raised a
second invoice. However, VSCIL unilaterally deducted an amount towards the
appointment of an Independent Engineer to supervise the Second and Third phases
of construction in terms of the Agreement and did not provide any invoice for these
fees.
7. ICPL issued notice to VSCIL to resolve this dispute amicably, however failed to
resolve. On 20th October 2022, ICPL sent a second notice invoking arbitration and
claiming an amount of Rs. 2,68,38,450 and also intimated nomination of a former
judge of the Supreme Court of Bharat as its arbitrator.
8. VSCIL responded by proposing conciliation as a means of resolution. ICPL rejected
this proposal and insisted once again that VSCIL nominate its arbitrator
expeditiously. VSCIL vide letter dated 28th November, 2022 conveyed to nominate
its arbitrator within two weeks. However, after lapse of four weeks VSCIL did not fulfil
its commitment.
9. Thereafter, ICPL filed an application on 22nd February 2023 under Section 11(6) of
the Act before the Madras High Court, seeking the appointment of a nominee
arbitrator on behalf of VSCIL.
10. The Madras High Court rejected the application of ICPL, concluding that the
arbitration clause had been invoked and exhausted during the first arbitration
proceedings. Consequently, the Court held that ICPL's attempt to initiate a second
arbitration for the same dispute was not permissible under the terms of the
agreement.

3
 STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for the petition filed before this hon’ble
Supreme Court. The petition invokes its jurisdiction under Article 136 of the Constitution of
India. It sets forth the facts and the laws on which the claims are based.

4
 Issues for Consideration

Following issues has been raised before The Hon’ble Court:

(I) Whether the Hon’ble High Court has jurisdiction under Section 11(6A) of the Arbitration
and Conciliation Act, 1996 to conclusively determine the existence and validity of the
Arbitration Agreement?

(II) Whether the term “not thereafter” used in the Dispute Resolution Clause can be interpreted
to restrict the Petitioner ICPL from invoking Successive Arbitration for subsequent dispute
arising between the same parties under the same contract?

(III) Whether the Hon’ble High Court has jurisdiction to pass impugned order of rejection of
application ?

(IV) Whether invocation of subsequent arbitration by giving 2nd notice is estopped by Order 2
Rule 2 of Code of Civil Procedure, and further barred by principle of Res Judicata?

5
 Summary of Arguments:

Introduction: The case involves a contractual dispute between Ignited Construction Private
Limited (ICPL) and Vidyut Shakti Corporation of India Limited (VSCIL). The dispute centers
around the interpretation of the arbitration clause and the jurisdiction of the Madras High
Court. The appellant argues that the High Court exceeded its jurisdiction and misinterpreted
the arbitration clause.

Issue (I): Jurisdiction to Determine Arbitration Agreement: The first issue is whether the
High Court has jurisdiction under Section 11(6A) of the Arbitration and Conciliation Act, 1996
to conclusively determine the existence and validity of the arbitration agreement. The
appellant asserts that the court does have this jurisdiction. They argue that "existence"
includes "validity" and that existence presupposes a valid and enforceable arbitration
agreement. Additionally, the appellant distinguishes between "existence" and "arbitrability,"
stating that they are distinct concepts.

Issue II: Interpretation of "Not Thereafter" in Arbitration Clause: The second issue
revolves around the interpretation of the term "not thereafter" in the Dispute Resolution
Clause. The appellant contends that this term does not prohibit successive arbitrations for
different disputes arising under the same contract. They argue that the High Court's
interpretation is flawed and that the term should be understood in the context of contract
interpretation principles.

Issue III: High Court's Jurisdiction to Pass Impugned Order: The third issue questions
whether the High Court had jurisdiction to pass the impugned order of rejection. The
appellant argues that the court's intervention should be minimal and limited to specific
matters such as the existence and validity of the arbitration agreement, without determining
the subject matter.

Issue IV: Estoppel and Res Judicata for Subsequent Arbitration: The final issue deals
with whether the invocation of subsequent arbitration by giving a second notice is estopped
by Order 2 Rule 2 of the Code of Civil Procedure and barred by the principle of Res
Judicata. The appellant contends that the second notice is not estopped by Order 2 Rule 2
CPC or barred by Res Judicata because the causes of action in the disputes are different.

The appellant supports these arguments with legal principles, statutory provisions, and
relevant case law to demonstrate that the High Court's decision should be overturned. They
emphasize the importance of upholding the legislative intent, party autonomy in arbitration,
and the need for a comprehensive understanding of contract interpretation principles in
resolving this dispute.

6
 WRITTEN SUBMISSIONS

Introduction:

The Petitioner humbly submits to the Hon'ble Court that the present petition for appeal arises
from a contractual dispute between Ignited Construction Private Limited (ICPL), the
Appellant, and Vidyut Shakti Corporation of India Limited (VSCIL), the Respondent. The
dispute pertains to the interpretation of the arbitration clause and the jurisdiction of the
Hon'ble Madras High Court to pass the impugned order. This submission aims to elaborate
on the appellant's arguments, supporting the assertion that the High Court has exceeded its
jurisdiction and thereby misinterpreted the arbitration clause.

Issue (I):

Whether the Hon’ble High Court has jurisdiction under Section 11(6A) of the Arbitration and
Conciliation Act, 1996 to conclusively determine the existence and validity of the Arbitration
Agreement?

It is humbly submitted that Hon’ble High Court has jurisdiction under Section 11(6A) of the
Arbitration and Conciliation Act, 1996 to conclusively determine the existence and validity of
the Arbitration Agreement 1.

A) Existence includes validity

B) Existence and Arbitrability are different

C) Court to decide existence not arbitrability

A) Existence includes validity-

The Supreme Court or, as the case may be, the High Court, while considering any
application under sub-section (4) or subsection (5), shall, notwithstanding any judgment,
decree or order of any Court, confine to the examination of the existence of an arbitration
agreement2.

On jurisprudentially and textualism it is possible to differentiate between existence of an

arbitration agreement and validity of an arbitration agreement. Such interpretation can draw
support from the plain meaning of the word “existence”. However, it is equally possible,
jurisprudentially and on contextualism, to hold that an agreement has no existence if it is not
enforceable and not binding. Existence of an arbitration agreement presupposes a valid
agreement which would be enforced by the court by relegating the parties to arbitration.3

1
Magic Eye Developers Pvt. Ltd. V. M/s. Green Edge Infra. Ltd. MANU/SC/0573/2023 14
2
Section 11(6A) , Arbitration and Conciliation Act , 1996
3
Vidya Drolia Trading Corp. v Durga Trading Corp. & ors. (2021) 2 SCC 1 para 146

7
Existence of an arbitration agreement means an arbitration agreement that meets and
satisfies the statutory requirement of both the arbitration act and contract act and when it is
enforceable in law.

Existence and validity are intertwined, an arbitration agreement does not exist if it is illegal or
does not satisfy mandatory legal requirements.4

B) Existence and Arbitrability are different : The Secondary inquiry that may arise at the
reference stage itself is with respect to the non-arbitrability of the dispute. Both are different
and distinct.1

ISSUE II:

Whether the term “not thereafter” used in the Dispute Resolution Clause can be interpreted
to restrict the Petitioner ICPL from invoking Successive Arbitration for subsequent disputes
arising between the same parties under the same contract?

Misinterpretation of Arbitration Clause:

The Appellant submits that the arbitration dispute clause 255 contained in the arbitration
agreement of construction of 30 transmission towers, does not prohibit successive
arbitrations which are separate and distinct forms of disputes arising under the same
contract.

The Hon’ble High Court’s interpretation of the term "not thereafter" in the clause 25 of the
said agreement conclusively bars successive arbitrations is flawed. The term "not thereafter"
does not indicate an intention of parties to prohibit the invocation of arbitration for the distinct
nature of disputes that arise subsequently in the matter of dispute.

As in the 1st arbitral proceeding, the issue was the deduction of money due to unsatisfactory
work of the appellant. Whereas the ground of deduction in the 2nd dispute is of completely
different nature i.e., unilateral deduction due to appointment of an Independent Engineer to
supervise the Second and Third phases of the project. Further, the said deduction was made
without issuing any invoice to the appellant for the payment to the Independent Engineer.
Thus, the interpretation of the term “not thereafter” to bar the petitioner to invoke the 2nd
arbitration proceeding is erroneous and impaired.

Interpreting the term "not thereafter" within the context of the arbitration clause requires an
overall analysis of the principles of contract interpretation. Such principles of contract
interpretation aim to discern the intent of the involved parties in an agreement. In this
context, the phrase "not thereafter" constitutes a pivotal element in the arbitration clause,

4
United india insurance company ltd. Vs hyundai eng. And construction comp. ltd. (2018) 17
SCC 607
5
Clause 25 of the Moot Proposition in Para 4.

8
and its interpretation plays a pivotal role in determining the permissibility of successive
arbitrations. Following are the principles involved in contract interpretation -

1. Plain meaning : One of the fundamental tenets of contract interpretation is the

plain meaning rule. This principle dictates that contract words are to be attributed
their ordinary and customary meanings, unless an opposing intent is evident.
Within the arbitration clause, "not thereafter" implies a specific temporal
constraint on initiating arbitration; any invocation beyond this timeframe is
precluded.

2. Arbitration clause Purpose : While the literal sense of the term is crucial,
comprehending contractual terms necessitates weighing the surrounding
circumstances. The purpose of the arbitration clause and the intent of the parties
during contract formation become pertinent considerations in ascertaining the
genuine intent behind the term "not thereafter."

3. Parties' Intention: The intent of the parties is above all in contract interpretation. If
it can be established that the parties intended to confine arbitration invocation to
a delimited timeframe, the term "not thereafter" might be construed as prohibiting
the instigation of arbitration proceedings after this designated timeframe.

4. Presumption Against Absurdity: Courts generally assume that parties do not

seek absurd outcomes when making contracts. If interpreting "not thereafter" as
an outright bar to invoking arbitration for distinct disputes arising after the initial
instance leads to an absurd result, the term could potentially be construed more
flexibly to accommodate successive arbitrations.

5. Doctrine of Ejusdem Generis: This doctrine posits that when general terms
follow specific ones in a contract, the general terms are to be construed to
encompass only matters of the same category as those specified. If the
arbitration clause stipulates specific conditions for invoking arbitration and
subsequently employs the term "not thereafter," the doctrine of ejusdem generis
might indicate that "not thereafter" pertains to conditions of a similar nature.

Legal precedents, including “S.B.P. & Co vs Patel Engineering Ltd. & Anr on 26 October,
2005”6 establish that parties should not be constrained in their ability to invoke arbitration for
separate claims arising from the same contract.

Legitimate Concerns and Implications:

Upholding the impugned order would establish a dangerous precedent that allows courts to
delve into the merits of arbitration agreements, contrary to the legislative intent of Section
11(6A).

It would undermine the principle of party autonomy, which forms the bedrock of arbitration,
and create an environment of uncertainty, inefficiency, and multiplicity of proceedings.

6
S.B.P. & Co vs Patel Engineering Ltd. & Anr on 26 October, 2005

9
Inference and Conclusion:

Interpreting the term "not thereafter" necessitates synthesising these principles of contract
interpretation and the above judicial precedent. While the term's apparent meaning implies
temporal limitations, the encompassing circumstances, parties' intent, and the prospect of
illogical outcomes also bear relevance. A comprehensive grasp of the entire arbitration
clause, its purpose, and the contextual backdrop in which it was formulated will ultimately
guide the interpretation of the term "not thereafter."

III. Whether the Hon’ble High Court has jurisdiction to pass impugned order of rejection of
application ?

It is humbly submitted that Hon’ble High Court erred in passing the impugned order because
Arbitration and Conciliation Act,1996 hereinafter The Act , 1996 contemplates-

A) Minimal Judicial Intervention :

B) Pre-Arbitral Judicial Intervention :

Scope-a) Examination of existence and validity of Arbitration Agreement

b) Arbitrability

C) Judicial Authority not to determine subject- matter

D) Application of law to given Arbitration Agreement

A) Minimal Judicial Intervention –

In case where the arbitration clause is provided in the agreement ,the court’s intervention
should be minimal7. Section 5 brings out clearly the object of the new act , viz , that of
encouraging resolution of dispute expeditiously and less expensively and where there is an
Arbitration Agreement , the courts intervention should be minimal.8Section 5 of The Act is
analogous to Article 5 of UNCITRAL Model Law 9. A collective reading of the Statement of
Object and Reasons of the Arbitration Act,1996 r/w Section 5 of the Act, and Article 5 of the
Model Law ,would make it abundantly clear that the legislative intent behind the enactment

7
AIR 2000 SC 1379
8
(2004) 4 SCC 539
9
Sethi,R.P., Commentary on Law of Arbitration and Conciliation Vol. I , 2007

10
was to inter alia, minimise the intervention of the Courts and provide for timely resolution of
disputes10.

The legislative policy and purpose is essentially to minimise the court intervention at the
stage of appointing the arbitrator and this intention as incorporated in section 11(6A) ought
to be respected.11

B) Pre-Arbitral Judicial Intervention –

the pre-referral jurisdiction of the courts under Section 11(6) of the Act is very
narrow and inheres two inquiries. The primary inquiry is about the existence and
the validity of an arbitration agreement, which also includes an inquiry as to the
parties to the agreement and the applicant’s privity to the said agreement. These
are matters which require a thorough examination by the referral court. 12 So13, far
as the first issue with respect to the existence and the validity of an arbitration agreement ,
as the same goes to the root of the matter, the same has to be to conclusively decided by
the referral court at the referral stage itself. Sans an agreement, there cannot be a reference
to arbitration.14

(I)Scope- The Supreme Court or, as the case may be, the High Court, while considering any
application under sub-section (4) or subsection (5), shall, notwithstanding any judgment,
decree or order of any Court, confine to the examination of the existence of an arbitration
agreement15. Section 11(6A) of the Act , no doubt, contemplated constraining the court to not
stray into areas which were permissible under the earlier regime set out in SBP16 as
explained in Boghara17. The scope of the judicial intervention is only restricted to situations
where the Court / Judicial Authority finds that the Arbitration Agreement doesn’t exist or is
null and void 18

10
MANU/SC/0445/2023
11
Mayavati trading (P) ltd. V. pradyuat Deb Burman (2019) 8 SCC 267
12
NTPC Ltd.Vs. SPML Infra Ltd MANU/SC/0341/2023
13
MANU/SC/0573/2023 14
14
2023 SCC Online SC 495
15
Section 11(6A) , Arbitration and Conciliation Act , 1996
16
SBP & Co. v Patel Eng. Pvt. Ltd. & another (2005) 8SCC 618
17
National Insurance Comp. Ltd. v Boghara Polyfab Private Ltd. (2009) 1 SCC 267
18
LAW COMMISSION OF INDIA Report No. 246 Amendments to the Arbitration and
Conciliation Act 1996, pg. 43

11
a) Validity and existence:

What is contemplated in section 11(6A) is no mere facial existence or existence in fact but
also exist in law.19

What section 11(6A) contemplates is a contract and it is not an agreement which cannot be
treated as a contract. This is dispite the use of the words “arbitration agreements” in section
11(6A). in other words, contract must conform to section 7 of the Act it must also, needless
to say, fulfil the requirements of the contract act.10

B) Arbitrability :

so far as the non arbitrability of the dispute is concerned , the court at prereferral stage and
while examining the jurisdiction under Section 11(6) of the Act may even consider prima
facie examining the arbitrability of claims20. The prima facie review at the reference stage is
to cut the deadwood and trim off the side branches straightforward cases where dismissal is
barefaced and pellucid and when on the facts and law the litigation must stop at the first
stage21.

C) Judicial Authority not to determine subject- matter subject to exception –

Judicial Authority has no Authority to determine subject – matter of the arbitration agreement
except when parties themselves created exception to Arbitration Agreement. if a dispute
croppes up at the very outset which cannot be referred to arbitration as being not
covered by the clause, then it cannot be pleaded as a bar to the maintainability of
the legal action or suit for determination of the dispute which was outside the
arbitration clause14. When there a conditional expression of intent in arbitration
agreement and in circumstances parties contemplated of not having recourse ,
then only there can be conclusive determination of arbitrability of subject matter
.22

19
M/S. N.N. GLOBAL MERCANTILE PRIVATE LIMITED v. M/S. INDO UNIQUE FLAME
LTD. MANU/SC/0445/2023
20
Vidya Drolia Trading Corp. v Durga Trading Corp. & ors. (2021) 2 SCC 1
21
Magic Eye Developers Pvt. Ltd. V. M/s. Green Edge Infrastructure Pvt. Ltd.
MANU/SC/0573/2023 14
22
United India Insurance Co. Ltd. & Anr.v. Hyundai Engineering and Construction Co. Ltd. &
Ors.(2018)17 SCC 607.

12
D) Application of law to given Arbitration Agreement :

The Arbitration Agreement (clause 25 ) requires that any dispute , difference as to

construction or interpretation of agreement is to be decided by arbitral tribunal . whether
subsequent arbitration is barred or not in view of the language is a dispute as to
interpretation of the Arbitration Agreement which the arbitration agreement requires to be
resolved by Arbitration Agreement . Thus , Hon’ble High Court erred in determining that. It is
wrong in principle for the Courts to concern themselves with disputes which the parties have
formally chosen to withdraw from them , quite apart from the waste of time and expense
caused by gratuitous judicial interference23 .

ISSUE IV:

Whether invocation of subsequent arbitration by giving 2nd notice is estopped by Order 2

Rule 2 of Code of Civil Procedure, and further barred by principle of Res Judicata?

It is humbly submitted that invoking subsequent arbitration by giving 2nd notice in the
present case is neither estopped by order 2 rule 2 Code of civil procedure nor barred by
Principle of Res Judicata because :

A) order 2 rule 2 Code of civil procedure bar a subsequent suit on the same cause of action.
The claim made in the second notice is not barred by order 2, Rule 2 of the CPC ,in as much
as ,is dispute that arose in other cause of action of unilateral deduction by respondent
without providing invoice.

B) Ground for not application of Res-Judicata to instant facts and circumstances -

The principles of res-judicata and constructive res-judicata are not applicable to the instant
facts in as much as the disputes that were raised in 2nd notice were not permissible for
being referred to 1st Arbitral proceeding in view of the terms of the arbitration clause that the
party invoking the Arbitral proceedings had to raise the all the points of dispute at the time of
invocation and not thereafter.

It is further submitted that since the first notice to dispute as to deductions on the ground of
alleged unsatisfactory work was served on 20th April,2022 , while the claims that have
been raised subsequently in the second notice arose only after 17th July, 2022 which could
not have be raised in the first reference before the Arbitrator and as such the second notice
cannot be said to have barred by res-judicata as provided in Section 11 of the CPC or by the
rules of constructive res-judicata.

It is further submitted that respondent didn’t oppose to second notice in first instance:

23
Mustill Lord , O.P. Malhotra , Law and practice of Arbitration ( 1st Ed. , 2002 , lexisnexis)

13
(i)Letter vide dated 20/10/2022 proposed dispute be settled through conciliation .

(ii) even vide letter dated 28/11/2022 conveyed that it would nominate its arbitrator within 2
weeks.

Applicable law- Order 2 Rule 2 -

...This rule does not require that when several causes of action arise from one transaction,
the plaintiff should sue for all of them in one suit. What the rule lays down is that where there
is one entire cause of action, the plaintiff cannot split the cause of action into parts so as to
bring separate suits in respect of those parts.24

In the instant case cause of action is different.

‘ It is well settled that as a general rule, all claims which are the subject-matter of a reference
to arbitration merge in the award which is pronounced in the proceedings before the
arbitrator and that after an award has been pronounced, the rights and liabilities of the
parties in respect of the said claims can be determined only on the basis of the said award.
After an award is pronounced, no action can be started on the original claim which had been
the subject-matter of the reference.…’25

In the instant case cause of action is different.

Estoppel by Order 2 Rule 2

Order 2 Rule 226 of the Code of civil procedure states where a plaintiff omits to sue in
respect of any portion of his claim or intentionally relinquishes any portion of his claim. Then,
he is debarred from suing in respect of the portion so omitted or relinquished. It is worth
noting that omission or relinquishment of claim is made on a cause of action in a dispute.
Where there is an entirely different cause of action the above said rule does not apply. In the
instance case, the issue arising in 2nd dispute is wholly different from that of 1st dispute, as
in this dispute the deduction was made on the appointment of an Independent Engineer
without communicating his invoices of fees, forms a different cause of action.

The view is taken by the Delhi High Court in the case of “Delhi Development Authority, New
Delhi and Anr. V. Alkarma”27 it is held as under:

The view that in no case would the provisions of Order 2, Rule 2 be applicable to arbitration
proceedings cannot be accepted. The provisions of Order 2, Rule 2 would apply if the
request for referring more disputes to arbitration is made after the making of the award.
Once an award has been made a party cannot be permitted to raise more disputes which
he/she could and ought to have raised earlier. Where however, an award has not been
made, it is open to a claimant to ask for far more disputes to be referred to arbitration
provided the arbitration proceedings are not yet over. In such an event, if the authority

24 Mulla's CPC (Volume II, Fourteenth Edition) at page 894

25 Satish kumar and ors. V. surinder kumar and ors. Manu/SC/0264/1968
26
Order 2 Rule 2 CPC, 1908
27
Delhi Development Authority, New Delhi and Anr. V. Alkarma, New Delhi
MANU/DE/0204/1984 para 16

14
competent to appoint an arbitrator and to refer the disputes, fails to do so, the Court has the
jurisdiction to order the filing of the arbitration agreement and to direct the Engineer Member
(competent authority under arbitration clause) to refer the disputes to arbitration.

The Delhi High Court in “Panipat Jalandhar NH1 Tollway Pvt Ltd V. NHAI” 28, held that
multiple arbitrations are permissible if the cause of action arises after the constitution of a
tribunal. However, to avoid the constitution of separate arbitral tribunals for separate claims
in respect of the same contract, it would be appropriate to raise the claims before the tribunal
where proceedings are in progress.

28
Panipat Jalandhar NH1 Tollway Pvt Ltd V. NHAI

15
 Prayer

The Petitioner humbly prays before this Hon'ble Court for the following reliefs :
1. To Set aside the Order dated 8th May 2023 passed by the Hon'ble Madras High Court
for rejection of the Appellant's application under Section 11(6) of the Arbitration and
Conciliation Act for the appointment of a nominee arbitrator.

2. To declare that the Appellant is entitled to invoke successive arbitration proceedings

for the separate and distinct disputes arising under the same contract and arbitration
clause.

3. To appoint a nominee arbitrator on behalf of the Respondent (VSCIL), as per the

provisions of the arbitration clause.

4. Grant costs of the proceedings to the Appellant.

And/or,
Pass any other order as it deems fit in the interest of justice, equity and good
conscience.

All of which is most humbly and respectfully submitted.

FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND FOREVER
PRAY.

On the behalf of Respondent

Counsel for Respondent

16