MS KGPS MECHANICAL PVT LTD vs CINDA ENGINEERING AND CONSTRUCTION PVT LTD

$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22nd April, 2024
+ ARB.P. 143/2024
MS KGPS MECHANICAL PVT LTD ….. Petitioner
Through: Mr. Kaveesh Nair, Ms Rachael Tuli and Ms. Mahima Mukherjee, Advocates (M: 9717572932).
versus

CINDA ENGINEERING AND CONSTRUCTION
PVT LTD ….. Respondent
Through: Mr. Gauhar Mirza, Ms. Hiral Gupta and Mr. Ritik Kumar Rath, Advocates (M: 9899670086).
CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
FACTS
2. This is a petition filed by the Petitioner under section 11 (6) of the Arbitration and Conciliation act, 1996, seeking appointment of an arbitrator with respect to the disputes arising between the parties regarding nine contracts as mentioned in paragraphs 3 and 4 of the Pleadings.
3. The Petitioner – KGPS Mechanical Pvt. Ltd. is a contractor for structural and mechanical jobs, registered under the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred as ‘MSME’).
4. The Respondent- CINDA Engineering and Construction Pvt. Ltd. is a technical consultant company which was awarded the Engineering, Procurement, Construction, Management contract for its Carbon Black Project (hereinafter referred as ‘Project’) at Dahej, Bharuch to the Respondent Company. The Respondent thereafter invited bids for multiple packages.
5. The Petitioner was awarded two contracts dated 27th February, 2020, regarding design, engineering, manufacture, construction, erection for values of more than Rs. 28 crores and Rs. 31 crores. Thereafter, the Petitioner company was awarded seven more contracts which were not completed by the previous vendors.
6. The case of the Petitioner is that the Respondent had payment dues with regards to the work completed by the Petitioner. There were a total of nine agreements which were executed between the parties in which a claim of more than Rs.10 crores has been raised by the Petitioner. Though, there are three member arbitral tribunals contemplated under the contracts, but when the Petitioner invoked the arbitration vide notice dated 13th December, 2023, the Respondent replied to the notice vide email dated 4th January 2024 and stated as under:-
“11. It may be noted that there are nine separate agreements, each of which contains an independent arbitration clause and provides for ad-hoc arbitration through an Arbitral Tribunal comprising 3 Arbitrators. Since the parties to the dispute are common and to avoid multiplicity of proceedings, our Client proposes that the dispute under all the Contracts be referred to a Sole Arbitrator (ad-hoc arbitration), to be appointed through mutual consent or by approaching the Hon’ble High Court of Delhi.”

7. As per the above, the Respondent stated that it is willing for a Sole Arbitrator to be appointed by this Court. The Petitioner then suggested the names of three arbitrators. However, since there was no response, the present petition has been filed.
8. On 14th March, 2024, it was submitted by the Respondent that out of nine agreements, only five agreements have an arbitration clause and in the remaining four agreements, there was no arbitration clause.
9. An objection was initially raised by ld. Counsel for the Respondent that the Petitioner has failed to disclose to the Court that it has already approached the Micro, Small and Medium Enterprises Facilitation Council (hereinafter ‘MSEFC’) for conciliation/ reference and the same was not disclosed to this Court. Ld. Counsel for the Petitioner, at that stage, had submitted that the MSEFC references were made in respect of five agreements which had an arbitration clause but there had been no effective proceeding before the MSEFC. He had agreed that his client would be withdrawing the said references upon legal advice. 
10. Today, an application (to be numbered) has been filed placing on record the documents to show that the reference to the MSEFC has been withdrawn. The Court has perused the application – a copy of which has been handed over to the Court. A perusal of the application reveals that letters have been written on 8th April, 2024 to the Office of MSME Commissionerate withdrawing the references. Accordingly, the MSEFC shall pass appropriate orders directing withdrawal.

11. Insofar as the main matter is concerned, the issue which was crystallised on the last date is as under:-
“5. Subject to the MSEFC reference being withdrawn, a clear legal issue arises in this petition as to whether only the disputes under five agreements can be referred to arbitration or whether the disputes in respect all nine contracts i.e., the five contracts and the four contracts which do not have the arbitration clause can be together referred to one Arbitrator.”

12. The project involved in this matter is a ‘CCET CARBON BLACK PLANT PROJECT’ at Dahej, Gujarat. Total of nine contracts/orders were executed between the parties. The details are as under:-
S.No.
Contract Name
Arbitration Clause
Scope of Contract
Category
1.
Contract No. 18C3630B-S0029
YES
Field tank EPC work
Construction
and EPC work
2.
Contract No. 18C3630B-S0030
YES
Field tank and Silo
EPC Work
Construction
and EPC work
3.
Contract No. 18C3630B-S0097
YES
Fabrication and
installation work for
exhaust pipe & steel
structure of EDG flare
Construction
and EPC work
4.
Contract No. 18C3630B-S0096

YES
Steel structure supply,
fabrication and erection
work for misc.
structure.
Construction
and EPC work
5.
Contract No. 18C3630B-S3060

NO
Ladder & platform
material fabrication and
painting work for
equipment
Repair and/or
painting work
6.
Contract No. 18C3630B-S3033

NO
Dryer combustor and
APH manhole davit
arm (repair work)
Repair and/or
painting work
7.
Contract No. 18C3630B-S3037

NO
Fire accident Area silo
painting work
Repair and/or
painting work
8.
Contract No. 18C3630B-S3030
NO
Blasting and painting
work
Repair and/or
painting work
9.
Contract No. 18C3630B-S0141
YES
De-sox equipment &
piping installation
work.
Construction
and EPC work

13. From the above table, it is clear that the contracts at serial Nos.1 to 4 and 9 contain an Arbitration Clause. However, the contracts at serial Nos. 5 to 8 which were additionally awarded to the Petitioner, do not contain an Arbitration Clause and additional work.
ARGUMENTS
14. The submission on behalf of the Respondent, therefore, is that only the disputes under the five contracts can be referred to Arbitration and not the one at serial Nos. 5 to 8. Mr. Gauhar Mirza ld. Counsel for the Respondent refers to a decision i.e., S. Ghosh & Associates v. Delhi Development Authority, 2017 SCC OnLine Del 7732 page 7 to 9 paragraph 37.
15. He further submits that the reply which was sent to the legal notice has been issued under a mistaken impression of fact, as the four contracts did not contain an Arbitration Clause but it is stated to the contrary in the said reply. According to him, a mistake by a Counsel cannot be held against the client and thus, the reference ought not to be made. Further reliance is placed upon in Himalayan Co-Operative Group Housing v. Balwan Singh, (2015) 7 SCC 373, paragraph 32, which states that admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal. However, in cases where doubt exists as to a purported admission, the Court should be wary to accept such admissions unless the counsel or the advocate is authorised by principal to make such admission.
16. Ld. Counsel for the Petitioner, Mr. Kaveesh Nair, on the other hand, submits that the correspondence and the conduct of the parties would, itself, show that the matter can be referred to arbitration. Reliance is placed upon minutes of meetings dated 24th April, 2023 wherein seven out of the nine contracts including two which did not contain arbitration clauses are taken as part of one series of contracts.
17. Reliance is also placed upon a legal notice dated 27th September, 2023 wherein due to non-compliance of various stipulations in the minutes of meeting by the Respondent, the Petitioner has called upon the Respondent to perform their part of the contract. Therein, at paragraph 18 of the legal notice dated 27th September, 2023, the Petitioner made reference to seven contracts, whereas in the reply by the Respondent dated 10th November, 2023 in paragraph 4, all the nine contracts are included by the Respondent.
18. He further submits that the invocation of arbitration also was done by the Petitioner vide letter dated 13th December, 2023, where again the Petitioner referred to seven contracts in paragraph 18. However, in reply thereto, on 4th January, 2024, the Respondent stated as under:-
“11. It may be noted that there are nine separate agreements, each of which contains an independent arbitration clause and provides for ad-hoc arbitration through an Arbitral Tribunal comprising 3 Arbitrators. Since the parties to the dispute are common and to avoid multiplicity of proceedings, our Client proposes that the dispute under all the Contracts be referred to a Sole Arbitrator (ad-hoc arbitration), to be appointed through mutual consent or by approaching the Hon’ble Court of Delhi.
12. If your Client agrees with the same, please confirm the same within 5 (five) days of receipt of the present notice.
13. Needless to say, the proposal to refer the disputes under all the Contracts to a Sole Arbitrator is on a without prejudice basis. Our Client reserves the right to nominate its nominee arbitrator if your Client does not agree to resolve disputes through a sole arbitrator or if our Client receives no response in the period stipulated above.”

19. He relies upon the language in the above reply to argue that in fact the Respondent itself proposed that the dispute under all the nine contracts can be referred to a ld. Sole Arbitrator.
20. In rejoinder, thereto on 9th January, 2024, the Petitioner agreed to the same and suggested the names of three ld. Arbitrators and asked the Respondent to nominate the Sole Arbitrator within 7 days. Thus, according to Mr. Kaveesh Nair, ld. Counsel for the Petitioner, there is a clear agreement to refer disputes under all nine contracts to arbitration. Reference is made to S. Ghosh & Associates v. Delhi Development Authority, 2017 SCC OnLine Del 7732 and Powertech World Wide Limited v. Delvin International Generic Trading LLC, (2012) 1 SCC 361.

ANALYSIS & CONCLUSION
21. The Court has heard ld. Counsel for the parties. The first and foremost fact that deserves to be highlighted is that all the nine contracts related to the same project in Dahej, Gujarat. If the stand of the Respondent is accepted that there is an Arbitration Clause only in five of the contracts and not to the remaining four, insofar as the remaining four contracts are concerned, parties would have to be relegated to civil proceedings. This would definitely lead to multiplicity of disputes, delay in adjudication and also a possibility of conflicting rulings. Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1, clearly holds – ‘the rule for the Court is when in doubt , do refer’. In this backdrop, the facts of the case need to be analysed. 
22. The arbitration clause is, admittedly, contained only in five of the contracts at serial Nos. 1 to 4 and 9. These relate to EPC contracts i.e. (Engineering Procurement Construction Contracts) and were originally awarded to the Petitioner itself. The remaining contacts at serial Nos. 5 to 8 were sub-contracts which were earlier allotted to third party/vendors and during the course of the first five agreements, the other four contracts at Sl. No. 5 to 8 were re-allotted to the Petitioner. These are in the nature of repair and follow up work etc., 
23. The said four agreements, though relating to the same project, do not contain an Arbitration Clause. Under such circumstances, the Court has been confronted with the question as to whether disputes under these four contracts can be referred to Arbitration. The minutes of meeting and correspondence show that while the Petitioner makes repeated reference to seven contracts, the Respondent makes reference to nine contracts as part of the same set. This by itself would be sufficient to refer the disputes even under the four contracts to Arbitration. However, what is important is the reply to the invocation of arbitration. Insofar as the Petitioner is concerned, it invoked arbitration in respect of seven contracts on 13th December, 2023 though the Clause was contained only in five contracts. In reply thereto on 4th January, 2024, the Respondent suggested a Sole Arbitrator to be appointed in respect of all nine contracts.
 24. Similarly, in Ameet Lal Chand Shah & Ors. v. Rishabh Enterprises & Ors., MANU/SC/0501/2018 also there was an arbitration clause in 3 agreements out of 4 agreements, entered between the parties. However, the Court observed that since it is a part of a single commercial project, the disputes could be resolved to, by referring all the agreements to arbitration. The relevant portion of the said judgment has been extracted below:
“36. When we apply the aforesaid principles to the facts of the present case, as discussed earlier, both parties have consciously proceeded with the commercial transactions to commission the Photovoltaic Solar Plant at Dongri, Raksa, District Jhansi, U.P. The first respondent has proceeded to procure the materials, entered into agreement with Juwi India for engineering, installation and commissioning and the Sale and Purchase Agreement with Astonfield, were all the conscious steps taken in the commercial understanding to commission the Solar Plant at Dongri, Raksa, District Jhansi, U.P. Even though Juwi India and Astonfield are not parties to the main agreement — Equipment Lease Agreement (14-3-2012), all the agreements/contracts contain clauses referring to the main agreement. It is the duty of the court to impart the commercial understanding with a “sense of business efficacy” and not by the mere averments made in the plaint. The High Court was not right in refusing to refer the parties on the ground of the allegations of fraud levelled in the plaint.”

25. The legal issue that Mr. Mirza, ld. Counsel has raised is that once the Section 21 notice was issued in respect of a contract, the arbitration proceedings have commenced, thereafter, there cannot be a new arbitration agreement which can be read, due to the correspondence, arising out of initial invocation.
26. The Court has perused Section 7 read with Section 21. The same are reproduced below:-
“7. Arbitration agreement.—
(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(3) An arbitration agreement shall be in writing
(4) An arbitration agreement is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication 1[including communication through electronic means] which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

21. Commencement of arbitral proceedings.—Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.”

27. A perusal of Section 7 would show that an arbitration agreement has to be in writing and it is sufficient if it is contained in correspondence as per Section 7(4)(b). Section 21, clearly, postulates that commencement takes place when the request for arbitration is received by the Respondent.
28. In the present case, there are claims and counterclaims by the parties. The claims of the Petitioner are under seven contracts. The claims of the Respondent include liquidated damages under nine contracts – four of which do not contain the arbitration clause. Clearly, the invocation on 13th December, 2023 cannot be seen to be an invocation under all nine contracts. The 13th December, 2023 notice is an invocation of disputes only under seven contracts – two of which did not contain the Arbitration Clause. Thus, it would have to be noted that strictly speaking, the notice dated 13th December, 2023 would merely have been an invocation of arbitration under five agreements which contained the Arbitration Clause. However, the matter would not end here. In the reply, the Respondent had suggested the nomination of one Arbitrator contrary to the agreement which provide for three Arbitrators in the five contracts. The Respondent also suggested the nomination of one Arbitrator in respect of all nine contracts. Thus, while the notice dated 13th December, 2023 would be invocation qua the five contracts, the reply dated 4th January, 2024 would be an invocation of arbitration for the remaining four contracts. The final rejoinder would be the consensus ad idem between the parties for reference of disputes under all nine contracts where the Petitioner agrees and proposes the three ld. Arbitrators. 
29. In Powertech World Wide Ltd. v. Delvin International General Trading LLC, (2012) 1 SCC 361, the Court observed that once correspondences between the parties and attendant circumstances are conjointly read with petition, it clears the intention of the parties was to ad idem resolve the dispute through arbitration, and claims and counterclaims raised in correspondences between the parties is a precondition for invocation of arbitration. The relevant extract from the decision reads:
“26. It is in light of these provisions, one has to construe whether the clause in the present case, reproduced above, in para 3, constitutes a valid and binding agreement. It is clear from a reading of the said clause that the parties were ad idem to amicably settle their disputes or settle the disputes through an arbitrator in India/UAE. There was apparently some ambiguity caused by the language of the arbitration clause. If the clause is read by itself without reference to the correspondence between the parties and the attendant circumstances, may be the case would clearly fall within the judgment of this Court in Jagdish Chander [(2007) 5 SCC 719]. But once the correspondence between the parties and the attendant circumstances are read conjointly with the petition of the petitioner and with particular reference to the purchase contract, it becomes evident that the parties had an agreement in writing and were ad idem in their intention to refer these matters to an arbitrator in accordance with the provisions of the Act.
27. Vide their letter dated 30-3-2008, the respondent had raised certain claims upon the petitioner and had also repelled the threat extended by the petitioner to take steps before ECGC. This notice had been responded to by the petitioner vide letter dated 4-4-2008 wherein it had raised its claims demanding payment of money within seven days and also stated that any default thereto would constrain it to take legal action. Finally, vide letter dated 30-5-2008, the petitioner had invoked arbitration clause between the parties and, in fact, had even nominated an arbitrator calling upon the respondent to concur to the said appointment.
28. Replying to this letter vide letter dated 27-6-2008, the respondent had neither denied the existence nor the binding nature of the arbitration clause. On the contrary, it had requested the petitioner not to take any legal action for appointment of an arbitrator, as they wanted to suggest some other name as an arbitrator, that too, subject to the consent of the petitioner. This letter conclusively proves that the respondent had admitted the existence of an arbitration agreement between the parties and consented to the idea of appointing a common/sole arbitrator to determine the disputes between the parties. However, thereafter there had been complete silence from its side, necessitating the filing of the present petition under Section 11(6) of the Act by the petitioner.
29. Thus, any ambiguity in the arbitration clause contained in the purchase contract stood extinct by the correspondence between the parties and the consensus ad idem in relation to the existence of an arbitration agreement and settlement of disputes through arbitration became crystal clear. The parties obviously had committed to settle their disputes by arbitration, which they could not settle, as claims and counterclaims had been raised in the correspondence exchanged between them. In view of the above, even the precondition for invocation of an arbitration agreement stands satisfied.”

30. In Arb. A (Comm.) 7/2017 titled S. Ghosh & Associates v. Delhi Development Authority, the Court had analysed the correspondences shared between the parties which reflected that even though there was no arbitration clause, arbitration can be invoked. As per section 7 (4) of the Arbitration and Conciliation Act, 1996, the letters, telex, or other means of telecommunication provides a record of the agreement and the Appellant having being accepting the consent of DDA to refer the matter to arbitration is sufficient to invoke arbitration. The relevant portion of the said has been extracted below:
“14. Any doubt that any party or this Court must have with regard to whether said clause constitutes an arbitration clause is put to rest in view of the correspondence between the parties. By a letter dated 08.10.2014 the Director (Works), DDA sought consent of the appellant for referring the disputes to the sole arbitrator. The said letter reads as under:—
“M/s Sumit Ghosh & Associates
R-4, Hauz Khas, New Delhi-16
Sub: DDA Mega Housing Projects behind D-6 at Vasant
Kunj, New Delhi
Ref.: Your letter dt 23.7.2014
This is in response to your letter dt. 23.7.2014 requesting to resolve and conclude the ongoing dispute of unpaid bills of 2011. In this regard, I have been directed to intimate that in order to resolve the issue relation to unpaid bills etc. Engineer Member has decided to appoint Sh. S.R. Pandey, retired, ADG, CPWED as Arbitrator. This is a deviation from the provisions contained in the Agreement (Claus-6 of the agreement)
Kindly give your consent to appoint Sh. S.R. Pandey, retired ADG/CPWD as Arbitrator to resolve the issues relating to the payment of your unpaid bills etc.
This may please be treated as MOST URGENT.
(Vijay Kumar)
Director (Works)”
15. A plain reading of the said letter indicates that DDA also understood clause 16 as an arbitration clause and, therefore, sought an express consent of the appellant for appointing an arbitrator other than the Engineer Member or the Vice Chairman, as contemplated under clause 16 of the Agreement.
16. Even if the provisions of clause 16 are disregarded, it would be apparent that the letter dated 08.10.2014 read in conjunction with the appellant’s letter dated 9.10.2014 accepting the same, constitutes an arbitration agreement in writing. It is not contested that prior to 08.10.2014, the appellant had already articulated the disputes that had arisen and, therefore, the letter dated 08.10.2014 must be read as DDA’s decision to appoint Mr. S.R. Pandey as the sole arbitrator and refer the disputes to him. This having been accepted by the appellant, the only conclusion that can be drawn is that the parties had agreed for resolution of disputes by arbitration.
17. In this regard, it is also relevant to refer to Section 7(4) of the Act which expressly provides that arbitration agreement would be in writing if it is contained in an exchange of letters, telex, telegrams or other means of telecommunications, which provide a record of the agreement. DDA having sought the consent of the appellant to refer the disputes to arbitration and the appellant having accepted would, in the view of this Court, be sufficient to infer that the same constituted a record of the arbitration agreement between the parties.”

31. In Mahanagar Telephone Nigam Ltd. v. Canara Bank and Others, (2020) 12 SCC 767, the Court interpreted Section 7(4)(b) & 7(3) of the Arbitration and Conciliation Act, 1996, and observed that the arbitration agreement may not be in a particular form but what is to be looked into is the intention of the parties to settle their disputes and the same can also be implied from the documents/correspondence exchanged between the parties. The relevant portion of the said judgment is extracted below:
“9.2. The arbitration agreement need not be in any particular form. What is required to be ascertained is the intention of the parties to settle their disputes through arbitration. The essential elements or attributes of an arbitration agreement is the agreement to refer their disputes or differences to arbitration, which is expressly or impliedly spelt out from a clause in an agreement, separate agreement, or documents/correspondence exchanged between the parties.
9.3. Section 7(4)(b) of the 1996 Act, states that an arbitration agreement can be derived from exchange of letters, telex, telegram or other means of communication, including through electronic means. The 2015 Amendment Act inserted the words “including communication through electronic means” in Section 7(4)(b). If it can prima facie be shown that parties are ad idem, even though the other party may not have signed a formal contract, it cannot absolve him from the liability under the agreement [Govind Rubber Ltd. v. Louis Dreyfus Commodities Asia (P) Ltd., (2015) 13 SCC 477 : (2016) 1 SCC (Civ) 733] .
9.4. Arbitration agreements are to be construed according to the general principles of construction of statutes, statutory instruments, and other contractual documents. The intention of the parties must be inferred from the terms of the contract, conduct of the parties, and correspondence exchanged, to ascertain the existence of a binding contract between the parties. If the documents on record show that the parties were ad idem, and had actually reached an agreement upon all material terms, then it would be construed to be a binding contract. The meaning of a contract must be gathered by adopting a common sense approach, and must not be allowed to be thwarted by a pedantic and legalistic interpretation. [Union of India v. D.N. Revri & Co., (1976) 4 SCC 147]
9.5. A commercial document has to be interpreted in such a manner so as to give effect to the agreement, rather than to invalidate it. An “arbitration agreement” is a commercial document inter partes, and must be interpreted so as to give effect to the intention of the parties, rather than to invalidate it on technicalities.”

32. In Surya Processors Pvt. Ltd. v. Shree Jai Gurudev Textile Agencies, 2022 SCC OnLine Del 984, a Coordinate Bench observed that conduct of the parties is the most relevant and determinative test and therefore it depends from case to case in order to ascertain whether the correspondences form an arbitration agreement or not. The relevant portion has been extracted below:
“7. The invoices are not signed by SJGTA, and therefore the question that arises is if they can be considered to be a ground to deny the agreement. Section 7(3) of the Act stipulates that the arbitration agreement shall be in writing, which is undoubtedly an essential requisite. Sub-clause (b) and (c) of Section 7(4) of the Act indicates the legislative intent to also include a written document, not signed by the parties, within the scope of a valid arbitration agreement. Section 7(4)(b) of the Act entails that an arbitration agreement can be in the nature of exchange of communication, providing a record of the agreement in writing. Thus, taking into consideration the language deployed in the aforesaid provision, it emerges that the signature of either party on the arbitration agreement is not mandatory.
8. Furthermore, the aforesaid provision also manifests that an arbitration agreement need not be in a particular form. It is no longer res integra that a valid arbitration agreement can be constituted as long as all the essential attributes are fulfilled4. There are numerous case laws holding that to interpret the agreement as an ‘arbitration agreement’, one has to ascertain whether there is consensus ad idem between the parties to have their disputes referred to arbitration5. In terms of Section 7(c), even exchange of statement(s) of claim and defence ‘in which existence of the agreement is alleged by one party and not denied by the other’ – can constitute as an arbitration agreement. In that light, the Court has perused the response of SJGTA to the notice of invocation sent by SPPL. In the said reply, SJGTA does not dispute existence of arbitration agreement, and rather admits the same. The averments in their reply, read as under:—
………………………..
9. ……………………
10. The judgments relied upon by SJGTA are of no assistance to them. Each case turns on its own facts. The conduct of parties is the most relevant and determinative test. In other words, if a party does not urge the contention of non-existence of an arbitration agreement in its reply to the claim, then the arbitration agreement is deemed to exist.”

33. A perusal of the above judgments would show that in the present case also the intention of the parties can be construed from the correspondences exchanged between both the parties. The Respondent themselves suggested the following –
* pursuing arbitration with respect to all the nine contracts, in reply to the first notice dated 10th November, 2023, which shows that the Respondent had considered arbitration with respect to all nine agreements;
* appointment of a one-member tribunal instead of three member tribunal as contemplated in some of the agreements.
Both these proposals were agreed to by the Petitioner. Thus, for the five agreements parties were ad idem on a single member tribunal and for the four agreements which did not contain an arbitration clause, an arbitration agreement with a single member tribunal was agreed upon.
34. Insofar as the mistake of the ld. Counsel for the Respondent is concerned, there is definitely a mistake by the ld. Counsel in its reply when the counsel presumes that there is an Arbitration Clause in all nine contracts. However, para 11 consists of two separate portions. One is where ld. Counsel writes that there is an independent Arbitration Clause in all nine contracts. The second is where proposal is given seeking consent of the Petitioner for appointment of a ld. Sole Arbitrator. Both of these sentences can be delineated and read separately. The initial mistake in paragraph 11 would not in any manner obviate the proposal which is contained in the later part of paragraph 11.
35. In view thereof, the Court is inclined to appoint a ld. Sole Arbitrator to adjudicate the disputes. The judgement in S. Ghosh & Associates (supra) also was a situation where in the correspondence, after invocation of arbitration, consent was sought for appointment of a particular Arbitrator. Moreover, the following factors would tilt in favour of appointment of an Arbitrator for adjudication of all disputes i.e., –
i) in order to avoid multiplicity.
ii) Since all contracts relate to the same project and form part of the same series of works;
iii) The correspondence between the parties shows that they were treated as part of the same series of contracts.
iv) The clear proposal in the reply dated 4th January, 2024.
v) The unequivocal consent given by the Petitioner on 9th January, 2024.
36. A reading of letters dated 4th January, 2024 and 9th January,2024 lead no manner of doubt that there is an Arbitration Clause in respect of all nine contracts between the parties.
37. Accordingly, Justice A.K. Sikri (Retd.), (M:9818000300) is appointed as a ld. Sole Arbitrator to adjudicate the disputes. All the contentions on merits are kept open to be adjudicated in the arbitration proceedings.
38. The Arbitration proceedings shall take place under the aegis of the Delhi International Arbitration Centre (hereinafter, ‘DIAC’). The arbitration proceedings shall be conducted under the Rules of DIAC. The fee of the ld. Sole Arbitrator shall be as per the Fourth Schedule of the Arbitration and Conciliation Act, 1996, as amended by the DIAC Rules. 
39.     List before the DIAC on 20th May, 2024. Let a copy of the present order be emailed to Secretary, DIAC on the email id- delhiarbitrationcentre@gmail.com.
40.   Petition is disposed of with all pending applications, if any.

PRATHIBA M. SINGH
JUDGE
APRIL 22, 2024/mr/ks

ARB.P. 143/2024 Page 2 of 2