Note: DRAFT

Please take out print on green (ledger)

papers, put signature of the deponent on
every page and get it notarized by a notary
public.

Please also make ensure that seal of the

notary is there on each page and on the last
page put signature of an advocate, who
identifies the deponent of the affidavit-in-
reply.

Send all the annexures attached with this

the affidavit-in-reply.

Call me in case of necessity.

 -2-

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

(ORIGINAL JURISDICTION)

PETITION UNDER ARBITRATION ACT No.185 OF 2023

M/s.Sadbhav Engineering Limited

[ ...Petitioner

VERSUS

M/s. Suwarna Buildcon Private Limited

& Ors.
... Respondents

AFFIDAVIT-IN-REJOINDER ON BEHALF OF THE

PETITIONER-COMPANY

I, ______________________, s/o.

__________________________ , Hindu,

Adult, Indian inhabitant, Authorized

Signatory of the petitioner-Company,

having address at: _________________

___________________________________,

do hereby solemnly affirm and state

on oath as under:

(1) I state that I have received and

read copy of the affidavit-in-

reply filed by respondent No.1-

 -3-

M/s. Suwarna Buildcon Private

Limited and being conversant

with the facts and circumstances

of the case, I do hereby file

the present affidavit-in-

rejoinder and have to state as

under.

(2) At the outset I do not admit all

the averments, allegations and

contentions raised in the

affidavit-in-reply and the same

are hereby denied categorically

since the same are far from truth

and misleading and my not dealing

with the same para-wise may

kindly not be construed as an

admission on my part. I state

that the answering respondent

No.1 in the affidavit-in-reply

has not stated the correct facts

and has attempted to mislead this

Hon’ble Court.
 -4-

(3) I state that, as stated

hereinabove, though I do not

admit the averments made in the

affidavit-in-reply, however,

there are various admissions made

by the answering respondent No.1

in the affidavit-in-reply, which

I will specifically deal with in

the present affidavit-in-

rejoinder. I state that such

admissions of the answering

respondent No.1 in the affidavit-

in-reply are admitted by me . ,

though not specifically stated

and b B ased on such admissions of

the answering respondent in the

affidavit-in-reply, which I will

specifically deal with

hereinafter, the present petition

is required to be allowed. I

reiterate that the answering

respondent cannot come out of the

admissions made by the respondent

No.1 in the affidavit-in-reply

 -5-

filed before this Hon’ble Court

and all other miscellaneous

contentions though not admitted

are not germane to the present

Petition. and based on certain

admissions, which are dealt with

under the respective paragraphs

by the respondent, the present

petition is required to be

allowed on that ground alone.

(4) Referring to Paragraph No.1 of

the affidavit-in-reply, I state

that the same pertains to matter

of record of the answering

respondent-Company, for which the

petitioner does not have any

personal knowledge.
 -6-

(5) Referring to Paragraph Nos.2 to 7

of the affidavit-in-reply, I do

not admit the averments made

therein. I deny that the present

petition is not maintainable. I

further state that the pending

commercial suit and the

arbitrator proceedings between

the present petitioner and the

answering respondent are being

misinterpreted by the answering

respondent-Company. I state that

the present arbitration petition

is filed invoking the arbitration

clause contained in the agreement

dated 08.07.2020 and, therefore,

the same is required to be

considered in view of the

obligations of the parties

contained in the said agreement.

I further state that the

averments raised in the present

affidavit-in-rejoinder are

without prejudice to each other.

 -7-

(6) Referring to Paragraph Nos.8 to

12 of the affidavit-in-reply, I

do not admit the averments made

therein. I refute and challenge

all assertions made by the

answering respondent in its

affidavit-in-reply. I state that

the veracity and merits of the

defences of the answering

respondent can be considered by

the arbitrator, which may be

appointed by this Hon’ble Court

under the agreement dated

08.07.2020. I state that in

Paragraph No.8, the answering

respondent has stated that they

are entitled to fair and

impartial adjudication of the

matter under the Arbitration and

Conciliation Act, 1996 (for short

“the Arbitration Act”). I state

 -8-

that the same can only be done if

a competent arbitrator is

appointed by this Hon’ble Court,

as prayed for in the present

petition. I deny that that the

petition is not maintainable. I

deny that the petition cannot be

entertained. I deny that the

petition fails to meet the

necessary criteria stipulated

within the regulatory frame work,

rendering it incapable of being

entertained within the confines

of established corporate protocol

and legal provisions. I deny that

adherence to the prescribed legal

parameters necessitates the

dismissal of the petition without

further deliberation or

consideration, aligning with the

imperative mandate to uphold

procedural integrity and

regulatory compliance within the

judicial and corporate domain. I

 -9-

deny that the petitioner is under

wrong impression. I deny that the

petitioner is under wrong

impression. I deny that the

petitioner has repeated any false

things in the present petition.

(7) Referring to Paragraph Nos.13 to

17 of the affidavit-in-reply, I

do not admit the averments made

therein. I deny that the

petitioner along with other

respondents had executed various

Contracts of Guarantee (CoG)

dated 16.03.2020. I state that

execution of such CoGs have been

denied at each and every stage by

the petitioner. I state that the

petitioner all throughout

maintained that the alleged CoGs

dated 16.03.2020 are not in

existence. I state that

therefore, there is no question

of original of the said CoG dated

 - 10 -

16.03.2020 being with the

petitioner. I state that the

answering respondent has never

been able to produce the original

CoG dated 16.03.2020 and I

reiterate that the said CoG is

not in existence and is created

by the answering respondent No.1.

I state that at various stages in

the affidavit-in-reply, the

answering respondent has stated

that the petitioner has to give

evidence in support of its claim.

I state that the petitioner has

in fact produced necessary

documents with the present

petition, which are required to

be produced for consideration of

a petition under section 11(6) of

the Arbitration Act and as far as

further evidence is concerned,

the same shall be produced before

the Hon’ble Arbitrator, during

the adjudication of the matter,

 - 11 -

as and when the Hon’ble

Arbitrator conducts the

arbitration proceedings. I state

that the answering respondent

also seems to be canvassing the

case of respondent Nos.2 to 9,

for which the answering

respondent has no locus. I state

that in fact some of other

respondents have already filed

affidavits before this Hon’ble

Court that they have no objection

if a competent arbitrator is

appointed in consonance with the

provision of the agreement dated

08.07.2020. I further state that

as per the settled legal position

of law, even respondent Nos.2 to

9 are required to be relegated to

the arbitration proceedings under

the agreement dated 08.07.2020.

The petitioner craves leave to

refer to and rely upon the

relevant provisions of law and

 - 12 -

judgments on this aspect at the

time of hearing of the present

petition, if necessary. I deny

that the petition is entirely

misconceived, irrational and

legally unsound. I deny that the

petition is in violation of the

foundational principles of

arbitration, under Sections 2 and

7 of the Arbitration Act. I

further state that issue of

joinder of parties can also be

decided by the arbitrator so

appointed under the Agreement

dated 08.07.2020. I further state

that in any case and without

prejudice to what is stated

hereinabove, I state that once

the answering respondent is not

disputing that it has entered

into agreement dated 08.07.2020,

the answering respondent cannot

contest the appointment of

 - 13 -

arbitrator, pursuant to the

agreement dated 08.07.2020.

(8) Referring to Paragraph Nos.18 to

21 of the affidavit-in-reply, I

do not admit the averments made

therein and I deny the averments

made therein. I state that

appointment of Hon’ble Arbitrator

Mr.R.V.Jambkar (Former Judge) is

illegal because it is based on an

agreement, which is not in

existence. In any case, I state

that all those issues are also

not required to be adjudicated

upon while considering the

present petition under Section 11

(6) of the Arbitration Act. I

state that it is settled law that

at this stage this Hon’ble Court

is only required to see whether

there exists an arbitration

clause or not. I state that in

the present case agreement dated

 - 14 -

08.07.2020 is not disputed by the

answering respondent and there is

valid arbitration clause

contained in the said agreement

and, therefore, the defences

raised by the answering

respondent at this stage are not

required to be considered on

merits by this Hon’ble Court in

the present proceedings. I deny

that the appointment of Hon’ble

Arbitrator Mr.R.V.Jambkar (Former

Judge) is valid and as per the

channels outlined in the

Arbitration Act. I state that in

Paragraph No.19 the answering

respondent has made a categorical

averment that the respondent

explicitly acknowledges and

affirms the legality, validity

and enforceability of the

arbitration agreement dated

08.07.2020, which includes

arbitration clause therein. I

 - 15 -

state that in view of this clear

admission made by the answering

respondent in Paragraph No.19 of

the affidavit-in-reply, the

present petition is required to

be allowed. I deny that the

petitioner is misunderstanding

and misinterpreting the alleged

CoG dated 16.03.2020 and the

agreement dated 08.07.2020. I

deny that the petitioner has

misunderstood the provision of

Section 21 of the Arbitration

Act. I deny that the petitioner

is deliberately attempting to

fabricate circumstances in order

to obtain a favourable judgment

by deceiving this Hon’ble Court.

(9) Referring to Paragraph Nos.22 and

23 of the affidavit-in-reply, I

do not admit the averments made

 - 16 -

therein. I state that as stated

above, the petitioner have

already produced the material to

show why the present petition is

required to be allowed and

arbitrator is required to be

appointed under the provisions of

Section 11 (6) of the Arbitration

Act. I state that as far as

further evidence is concerned,

the same is required to be

produced before the arbitrator by

the petitioner. I further state

that even the answering

respondent in Paragraph No.22 in

the affidavit-in-reply has

clearly made an assertion and has

agreed that CoG dated 16.03.2020

are neither recognized nor

acknowledged by the present

petitioner. I further state that

in the arbitration proceedings

under the alleged CoG dated

16.03.2020, the petitioner is

 - 17 -

vehemently pursuing its remedies

under section 16 of the

Arbitration Act as well as under

section 14 of the Arbitration

Act, however those remedies and

those proceedings arising out of

the arbitration proceedings of

the alleged CoG dated 16.03.2020

cannot come in way of the

appointment of the arbitrator

under the agreement dated

08.07.2020. I state that

agreement dated 08.07.2020 is a

separate, and distinct and a

subsequent agreement and

overriding agreement and,

therefore, the obligation of the

parties under the said agreement

as well as the interpretation of

the terms of the said agreement

are required to be considered and

adjudicated upon by a competent

arbitrator that may be appointed

by this Hon’ble Court in

 - 18 -

accordance with arbitration

clause contained in the agreement

dated 08.07.2020. I state that

the orders passed under section

16 or section 14 of the

Arbitration Act, section 9 or

section 12 of the Arbitration Act

under the arbitration proceedings

of the alleged CoG 16.03.2020 do

not imply in any manner that the

present petition is required to

be dismissed. I deny that the

petitioner has suppressed any

facts from this Hon’ble Court. I

deny that that the petitioner has

not produced material relevant to

the present proceedings. I state

that in any event the

consistent ce stand of the

petitioner-Company is that the

arbitration proceedings

undertaken pursuant to the

alleged CoG dated 16.03.2020 are

void ab-initio and without

 - 19 -

jurisdiction, as no such CoG

dated 16.03.2020 exist.

(10) Referring to Paragraph Nos.24 to

27 of the affidavit-in-reply, I

do not admit the averments made

therein. I state that the

petitioner has produced

compelling evidence to

substantiate the averments made

in the present petition. I deny

that the contentions of the

petitioner in Paragraph Nos.14 to

16 betray a fundamental

misunderstanding of the relevant

legal position. I reiterate those

contentions again as well as

reiterate all the contentions

raised in the petition on merits,

facts and law. I reiterate that

the arbitration provision

contained in the agreement dated

08.07.2020 override the provision

and jurisdiction of arbitrator as

 - 20 -

contained in the alleged CoG

dated 16.03.2020. I deny that

such interpretation contravene

the provisions of the Arbitration

Act. However, in any case I state

that at stage also the said

aspect may be left open to be

considered by the Hon’ble

Arbitrator, that may be appointed

by this Hon’ble Court. Without

prejudice to what is stated

hereinabove, I state that even if

the assertion of the answering

respondent in Paragraph No.26 of

the affidavit-in-reply is

concerned that CoG dated

16.03.2020 is distinct from the

agreement dated 08.07.2020, even

then the said would be a subject

matter of adjudication and

consideration by the Hon’ble

Arbitrator that may be appointed

pursuant to the agreement dated

08.07.2020. I state that stance

 - 21 -

of the petitioner before all

judicial forms is consistence

that the CoG dated 16.03.2020

does not exist. I deny that the

contentions raised by the

petitioner in the present

petition or in the notice under

section 21 of the Arbitration Act

fall beyond the ambit of

adjudication under section 11(6)

of the Arbitration Act.

(11) Referring to Paragraph Nos.28 and

29 of the affidavit-in-reply, I

do not admit the averments made

therein. I state that the legal

proceedings initiated by the

answering respondent against the

petitioner and group companies

are nothing but abuse of process

of law, without any merits and

attempt to play illegal

pressurize upon the petitioner-

Company and its group companies.

 - 22 -

I reiterate that the CoG dated

16.03.2020 does not exist. I

state that the contentions raised

by the petitioner in this

paragraph on merits in any case

cannot be considered in the

present petition, which arises

only under the Arbitration Act.

In any case I state that the

answering respondent has never

tried to resolve the matter

amicably and in fact the

answering respondent has

initiated various proceedings

just to see that the petitioner

and its group companies to

succumb to the illegal demand of

the answering respondent. I state

that even the previous notice

dated 27.05.2023 is part of

record of the present petition. I

deny that the said notice is not

produced with the petition. I

state that even considering the

 - 23 -

said notice and the reply dated

30.06.2023, the present petition

is required to be allowed and

arbitrator is required to be

appointed by this Hon’ble Court.

I deny that the notice dated

27.10.2023 lacks specificity

regarding the precise dispute or

difference between the parties. I

reiterate that all these notices

are only part of record of the

petition and I deny that there is

any underlining motive of

suppression before this Hon’ble

Court. I state that the answering

respondent did not have an

amicable approach during the

settlement talks that were going

on between the parties. I deny

that the settlement talks were

going on at the time of issuance

of notice dated 27.10.2023. I

state that the present petition

is filed in accordance with the

 - 24 -

provisions of the Arbitration Act

and the objections of the

petition being filed prior to

lapse of 30 days by the answering

respondent is incorrect. In any

case, I state that today

admittedly more than 30 days have

passed and the answering

respondent is not agreeing to

appointment of arbitrator as per

the agreement dated 08.07.2020

and, therefore, an arbitrator is

required to be appointed in

accordance with the provisions of

the agreement dated 08.07.2020. I

state that the contentions in the

affidavit-in-reply of the

answering respondent dated

02.12.2023 are incorrect and

denied by the answering

respondent.
 - 25 -

(12) Referring to Paragraph Nos.30 and

31 of the affidavit-in-reply, I

deny the averments made therein.

I deny that there is any

deliberate omission by the

petitioner. I deny that any vital

information has been concealed

from this Hon’ble Court by the

petitioner. I state that the date

of 22.11.2023 mentioned in

Paragraph No.30 of the affidavit-

in-reply for institution of the

petition is not correct, the

petition has been filed

thereafter, the date of

notarization and date of

institution of the petition are

completely different. I state

that the petition has been

instituted after the period of 30

days from 27.10.2023. In any

case, I state that even as on

date the answering respondent is

not agreeable to the appointment

 - 26 -

of arbitrator, though more than

30 days have passed. Thus, I

state that this objection of the

answering respondent is

completely misconstrued and

untenable in law. I further state

that the contention of the

answering respondent that the

petitioner is obligated to

furnish evidence to substantiate

their claim cannot be considered

at the stage of adjudication of

the petition under Section 11(6)

of the Arbitration Act. I state

that such aspect is to be

considered by the arbitrator at

the time of adjudication of the

dispute. I deny that the present

petition is aimed at obstructing

the ongoing arbitration

proceedings before the Hon’ble

Sole Arbitrator Mr.R.V.Jambkar

(Former Judge). I state that the

present petition is in fact aimed

 - 27 -

for resolving the dispute arising

out of agreement dated

08.07.2020.

(13) Referring to Paragraph Nos.32 and

35 of the affidavit-in-reply, I

deny the averments made therein.

I state that in the present case,

within the ambit of Section 11(6)

of the Arbitration Act, the

petition is required to be

allowed. I further state that the

reliance placed on the so-called

agreement dated 12.12.1919 is

unwarranted and untenable in law,

the same does not have any

bearing on the dispute at hand.

Moreover, the answering

respondent has not even annexed

the so-called agreement dated

12.12.2019. I state that in

Paragraph No.33 the answering

respondent has clearly admitted

that the respondent in

 - 28 -

contravention of legal duty has

deliberately concealed the

crucial information from this

Hon’ble Court. I state that it is

further stated in Paragraph No.33

that the respondent has withheld

the existence of the arbitration

agreement and the respondent has

persistently refrained from

denying the existence of the

arbitration agreement by the

petitioner. I state that it is

further stated in Paragraph No.33

that the actions of the

respondent not only violate the

spirit and intent of the

Arbitration Act but also

undermine the fundamental

principles of natural justice and

legal ethics. I state that such

admission of the respondent

clearly shows that the present

petition is required to be

allowed. I state that this

 - 29 -

admission clearly shows that the

earlier case of the answering

respondent before various

authorities is per se false. I

further state that the

application of the answering

respondent for impounding of the

document dated 16.03.2020 in any

case was untenable in law. I

state that the petitioner-Company

is in process of taking

appropriate steps against the

impounding of the alleged CoG

dated 16.03.2020.

(14) Referring to Paragraph Nos.36 and

38 of the affidavit-in-reply, I

deny the averments made therein.

I state that again in Paragraph

No.36 of the affidavit-in-reply,

the answering respondent has

admitted that the respondent has

 - 30 -

neglected their duty to fulfill

the financial obligation. I deny

that there is any collusion with

the petitioner and other

respondents. I state that the

answering respondent No.1 cannot

canvas the case of respondent

Nos.8 and 9 and, therefore, such

averment of the answering

respondent No.1 against

respondent Nos.8 and 9 in

Paragraph No.37 are denied and

uncalled for. Moreover, I state

that the challenge to decree of

the Hon’ble Commercial Court

under Order 23 of the Code of

Civil Procedure, 1908 is

unrelated to the present

controversy at hand. I deny that

the conduct of the petitioner is

in violation of principles of

good faith. I deny that the

tactics of the petitioner is

contrary to the spirit of

 - 31 -

arbitration. I deny that the

petitioner’s actions are

unwarranted and blatant disregard

of the legal frame work.

(15) Referring to Paragraph No.39 and

of the affidavit-in-reply and the

issues raised therein, I deny the

averments made therein. I state

that in Paragraph No.39 the

answering respondent has raised

certain issues, which as per it

are arising in the present

matter. I state that even for

adjudication of such issues, an

arbitrator is required to be

appointed by this Hon’ble Court.

I further state that in the

present case, appointing an

arbitrator under the agreement

dated 08.07.2020 would in fact be

necessary and required to resolve

the disputes arising out of the

said agreement dated 08.07.2020.

 - 32 -

I further state that even

considering the issue (B) raised

in Paragraph No.39, it becomes

clear that such aspect can only

be decided by the arbitrator

appointed under the agreement

dated 08.07.2020. I state that

the issues like res judicata,

estopple, etc. require leading of

evidence. I state that such

issues are also required to be

determined by appointment of

arbitrator under the agreement

dated 08.07.2020. I state that

the present is not a case of

seeking substitution of

arbitrator but the present is a

case of appointment of arbitrator

under agreement dated 08.07.2020

for resolving the disputes

arising out of agreement dated

08.07.2020. I state that

therefore, most of the issues

referred in Paragraph No.38 in

 - 33 -

fact do not arise in the facts of

the present case and even if the

answering respondent wants to

adjudication of such issues, they

can only be considered and

adjudicated upon by appointment

of an arbitrator under agreement

dated 08.07.2020. I state that

the reliance on section 10 or

section 11 of the Code of Civil

Procedure, 1908 at this stage as

well as section 34 of the

Arbitration Act by the answering

respondent is unfounded,

untenable and unsustainable in

law. I state that such aspects

are not required to be considered

while appointing an arbitrator

under Section 11(6) of the

Arbitration Act by this Hon’ble

Court.

(16) Referring to Paragraph Nos.40 to

42 of the affidavit-in-reply, I
 - 34 -

do not admit the averments made

therein. I state that in

Paragraph No.40 in fact the

answering respondent has admitted

that the petitioner’s reliance on

agreement dated 08.07.2020 is

well-founded and substantiated. I

state that by virtue such

admission again the present

petition may be allowed without

entering into further merits of

the case. I state that the

answering respondent has further

admitted in Paragraph No.40 that

the agreement dated 08.07.2020

2020 meticulously outlines

various contracts, work orders

and amendments and has further

admitted that the petitioner’s

claims are firmly rooted in

legitimate contractual

arrangement and are supported by

documentation. I deny that the

contention of the petitioner

 - 35 -

would substantially impact the

visibility and legal

enforceability of the claims

advanced in the commercial suit.

I state that in fact as per the

averments made in Paragraph No.41

of the affidavit-in-reply also,

it is clear that the answering

respondent wants examination of

contractual terms, which can be

done only by appointment of

arbitrator in the present

petition.

(17) Referring to Paragraph Nos.43 and

47 of the affidavit-in-reply, I

do not admit and deny the

averments made therein. I deny

that the present petition is

filed by any ulterior motive. I

deny that the present petition

warrants dismissal and imposition

of cost. I state that the present

petition is filed in good faith.

 - 36 -

I state that in fact filing of

the affidavit-in-reply by the

answering respondent is motivated

by malicious intention and

vexatious purpose and to delay

the lawful appointment of

arbitrator to resolve dispute as

per the agreement dated

08.07.2020. I state that

considering the facts and

circumstances of the case, the

present petition deserves to be

allowed.

(18) I reiterate whatever I have

stated in the writ petition. I

state that in fact what is stated

hereinabove and what is stated in

the memo of writ petition, the

same deserves to be allowed with

cost in the interest of

substantial justice.
 - 37 -

Solemnly affirmed at _________ on __

day of April, 2024.

________
DEPONENT

IDENTIFIED THE DEPONENT AND

EXPLAINED IN VERNACULAR
LANGUAGE BY ME

Advocate