REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2439 OF 2018 (ARISING OUT OF SLP (CIVIL) NO. 29519 OF 2015)

M/S. ELITE ENGINEERING AND  CONSTRUCTION (HYD.) PRIVATE LIMITED  REP. BY ITS MANAGING DIRECTOR .....APPELLANT(S)

VERSUS

M/S.  TECHTRANS CONSTRUCTION INDIA PRIVATE LIMITED REP. BY ITS MANAGING DIRECTOR .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.   

2) National  Highway  Authority  of  India  (NHAI)  had  entered  into

agreement  dated July  19,  2007 (hereinafter  referred to  as the

‘Concession Agreement’) whereby it had awarded a contract to

M/s.  T.K.  Toll  Road  Pvt.  Ltd.  (hereinafter  referred  to  as  the

‘Concessionaire’)  for  undertaking,  inter  alia,  the  design,

engineering, financing, procurement, construction, operation and

Civil Appeal No. 2439 of 2018 Page 1 of 18 (arising out of SLP(C) No. 29519 of 2015)

maintenance  of  the  Project  Highway  on  Build  Operate  and

Transfer  (BOT)  basis  on  the  National  Highway  67  connecting

Coimbatore and Nagapattinam.  The Concessionaire vide EPC

agreement  (Engineering,  Procurement  and  Construction

Agreement) dated January 31, 2008 awarded the said work on a

fixed  lump  sum  turnkey  basis  to  M/s.  Utility  Energytech  and

Engineers  Private  Limited  (hereinafter  referred to  as  the ‘EPC

Contractor’).   EPC Contractor, in turn, executed a Construction

Agreement  dated  March  14,  2008  with  the  respondent  herein

(M/s. Techtrans Construction India Pvt. Ltd.) to execute the works

as per terms and conditions entailed in that agreement.  Clause 8

of that agreement permitted the respondent to sub-contract the

structural  work.   Pursuant  thereto,  the  respondent  floated  a

tender for sub-contracting their work in which the appellant also

submitted its bid and was ultimately awarded the said work by the

respondent vide agreement dated July 29, 2009.   

3) Some disputes arose between the appellant and the respondent

in  connection  with  the  execution  of  the  said  work  and  the

appellant  vide  its  letter  dated  March  25,  2013  raised  certain

claims against the respondent.  The appellant also filed Original

Petition under Section 9 of the Arbitration and Conciliation Act,

1996 (hereinafter referred to as the ‘Act’) on the file of Principal Civil Appeal No. 2439 of 2018 Page 2 of 18 (arising out of SLP(C) No. 29519 of 2015)

Judge, Karur.  This petition was contested by the respondent who

in its reply denied all the allegations raised by the appellant and

also  submitted  that  since  there  was  no  arbitration  agreement

between the parties, the petition under Section 9 of the Act was

not maintainable.  While this was pending, the appellant moved

application under Section 11(3) and (5) of the Act for appointment

of  an  arbitrator  in  the  High  Court  of  Judicature  at  Madras  on

January 28, 2014.  Notice in this petition was issued by the High

Court.  In the meantime, on June 30, 2014, the Principal Judge,

Karur allowed the petition of the appellant under Section 9 of the

Act, but left open the issue of existence of arbitration agreement.

4) Insofar as the appellant’s petition under Section 11 of the Act is

concerned,  it  was  contested  by  the  respondent  taking  the

objection to the maintainability of the petition on the ground of

absence of any agreement.  The High Court has vide impugned

orders dated September 18, 2015 dismissed the said petition of

the  appellant  upholding  the  contention  of  the  respondent  that

there  is  no  arbitration  agreement  between  the  parties  and,

therefore, remedy under the Act for appointment of arbitrator or

constitution of Arbitral Tribunal is not available.

5) It may be clarified at this juncture that Agreement dated July 29, Civil Appeal No. 2439 of 2018 Page 3 of 18 (arising out of SLP(C) No. 29519 of 2015)

2009  entered  into  between  the  appellant  and  the  respondent

does not contain any arbitration clause.  There is no independent

arbitration agreement between the parties either.  However, case

set up by the appellant was that this Agreement dated July 29,

2009  entered  into  between  the  parties,  by  implication,

incorporates  the arbitration  agreement  that  is  contained in  the

Agreement dated March 14, 2008 that was entered into between

the EPC Contractor and the respondent.

6) Indubitably, clause 45 of the Agreement dated March 14, 2008

between EPC Contractor and the respondent contains procedure

for  resolution  of  disputes  and  sub-clause  (3)  thereof  refers  to

arbitration procedure.  In case of any dispute, as per clause 45.1,

first attempt is for ‘amicable resolution’.  Thereafter, under clause

45.2, process of ‘mediation’ is to be resorted to and if that also

fails then the ‘arbitration procedure’ is provided.  Clause 45.3 and

clause 45.4 read as under:

“45.3.Arbitration Procedure:

Subject to the provisions of Article 45.1 and 45.2, any dispute,  which is not  resolved by amicable resolution between  the  parties  or  by  a  reference  to  mediation, shall be finally settled by binding arbitration under the Arbitration and Conciliation Act, 1996.  The arbitration shall  be  by  a  panel  of  three  arbitrators,  one  to  be appointed by each Party and the third to be appointed by the two arbitrators appointed by the Parties.   The Party requiring arbitration shall appoint an arbitrator in

Civil Appeal No. 2439 of 2018 Page 4 of 18 (arising out of SLP(C) No. 29519 of 2015)

writing, inform the other party about such appointment and call upon the other party to appoint its arbitrator.  If within 15 days of receipt of such intimation the other party  fails  to  appoint  its  arbitrator,  the  Party  seeking appointment  of  arbitrator  may  take  further  steps  in accordance with Arbitration Act.

45.4.  Place of Arbitration:

The  place  of  arbitration  shall  be  Mumbai  for  all Disputes.”

7) According to the appellant,  this clause gets incorporated in the

Agreement dated July 29, 2009 that was entered into between

the respondent and the appellant, by virtue of following clauses in

the said agreement:

“'2.Subcontractor hereby agrees, undertakes to execute the  said  value  of  work,  and  is  responsible  for  the efficient and successful execution of the work and is to be completed as per the contract period specified in the contract document.

a........ b........

All  the  conditions  and  special  conditions  of  contract, specifications (general  and additional  clauses relating to  the  works  and  quality  specified  in  the  relevant agreement  between  the  Construction  Contractor  and the Employer are binding on the Subcontractor.”

   Annexure-I specifying the 'Terms and Conditions' Annexed

thereto inter alia provides Clause - 9.10 as under:

“9.10.  For  items  which  are  not  mentioned  in  this Agreement  Clauses,  terms  and  conditions  of Agreement  between  Contractor  and  EPC Concessionaire will be applicable.''

Civil Appeal No. 2439 of 2018 Page 5 of 18 (arising out of SLP(C) No. 29519 of 2015)

8) It is, thus, argued by the learned counsel for the appellant that as

per  the  aforesaid  clause,  when the  appellant  had  agreed and

undertaken to execute the work as per contract specified in the

contract document and the said clause also specifically provided

that all the special conditions of the contract, specifications etc.

relating  to  the  works  and  qualities  specified  in  the  relevant

agreement between the construction contractor and the employer

are binding on the respondent, the clause relating to arbitration

agreement i.e. 45 entered into between EPC Contractor and the

respondent  also  became  applicable  by  incorporation.  It  was

submitted  that  the  aforesaid  clause  read  with  clause  9.10  of

Annexure 1 which categorically mentions that in respect of items

which are not mentioned in the Agreement clauses, terms and

conditions of  the Agreement  between the Contractor  and EPC

Concessionaire will be applicable, would also lead to same result.

9) These very arguments were raised before the High Court.  The

appellant had also referred to certain communications addressed

by it to the respondent before invoking legal remedy wherein it

has stated that the parties had agreed for settlement of disputes

in accordance with clause 45.3.  The respondent, on the other

hand, had drawn attention of the High Court to paragraph 23 of

Civil Appeal No. 2439 of 2018 Page 6 of 18 (arising out of SLP(C) No. 29519 of 2015)

the  petition  filed  by  the  appellant  under  Section  9  of  the  Act

wherein it  had categorically stated that  the appellant  would be

constrained to initiate legal proceedings against the respondent

for recovery of amount by approaching the competent civil court.

The High Court, thus, opined that from the communications only,

it could not be said that parties had agreed for arbitration and, in

fact, the appellant in his petition filed under Section 9 of the Act

had  professed  ignorance  of  the  agreement  between  the

respondent and the employer.  As it  had gone to the extent of

making an averment to the effect that ‘the petitioner is totally kept

in dark about the terms and conditions of the agreement till now’.

The High Court thereafter construed clauses 2 and 9.10 of the

Agreement that was entered into between the appellant and the

respondent and came to the conclusion that those clauses never

meant  to  incorporate arbitration agreement  into the Agreement

dated  July  29,  2009  executed  between  the  parties.   On  this

aspect, discussion goes as follows:

“18.  On  a  careful  perusal  of  the  pleadings  and documents as also submissions of the learned counsel for  the  parties,  more  specifically  the  reading  of  the clauses, this court is of the view that part of clause-2 of the  agreement  dated  29.07.2009  extracted  aforesaid refers  to  only  ''works  and  quality  specified  in  the relevant  agreement  between  the  construction contractor and the employer''.   All  the conditions and the sub-conditions of contract  are binding on the sub

Civil Appeal No. 2439 of 2018 Page 7 of 18 (arising out of SLP(C) No. 29519 of 2015)

contractor/petitioner, but the unambiguous  reference is only to ''work and quality specified'' without any refence to  the  arbitration  clause.   It  is  not  a  case  of  only absence of  a  reference to  arbitration  clause,  but  the reference  being  specific  to  the  ''work  and  quality specified.''   An expanded meaning cannot be given to this  Clause.   It  is  in  this  context  that  Clause-9.10 of Annexure-I specifying the terms and conditions has to be read.  Once again, it refers to ''Items'' which are not mentioned in the agreement clauses where conditions of  the earlier  agreement  would be applicable.   Thus, this would refers to the items to be used.

 10) The High Court also drew distinction between the reference to the

another  document  and incorporation of  another  document  in  a

contract by reference, which has been explained by this Court in

M.R. Engineers and Contractors Private Limited v. Som Datt

Builders Ltd.1 and held that, in the instant case, there was only a

reference to another document with no intention to incorporate

the arbitration clause thereof in a contract between the parties.   

11) Questioning the aforesaid approach of  the High Court,  learned

counsel for the appellant submitted that when the appellant was

required  to  execute  the  work  on  the  terms  and  conditions

contained  in  the  principal  agreement,  it  was  clear  intention  to

incorporate all the terms including clause 45.3.  Additionally, he

referred to clause 8.7 of the agreement between the parties which

stipulates as under:

1  (2009) 7 SCC 696 Civil Appeal No. 2439 of 2018 Page 8 of 18 (arising out of SLP(C) No. 29519 of 2015)

“8.7  Other terms related to Termination of work will be same as Agreement between EPC, Concessionaire and Construction contractor.”

12) His submission was that when the terms related to termination of

work contained in the Agreement between EPC, Concessionaire

and the respondent were to govern their agreement as well, these

would  include  settlement  of  disputes  on  termination  of  work

through arbitration which was the term provided in the contract

between the employer  and the respondent.   Relying upon the

judgment  in  the  case  of  Groupe  Chimique  Tunisien  SA  v.

Southern  Petrochemicals  Industries  Corpn.  Ltd.2,  he

submitted that mere fact that appellant had mentioned about filing

suit against the respondent in his petition under Section 9 of the

Act would not enure to the benefit of the respondent who said so

on account of mistaken understanding of law.  Para 9 reads as

under:

“9. It is true that the petitioner had contended before the Jordanian court that there was no arbitration agreement between the parties.  But the said contention was not accepted and the suit filed by the petitioner has been dismissed  on  the  ground  of  want  of  jurisdiction. Thereafter, on reconsidering the matter and taking legal advice,  with  reference  to  the  contentions  of  the respondent, the petitioner has now proceeded on the basis that an arbitration agreement exists between the parties.  If,  on  account  of  mistake  or  wrong understanding of law, a party takes a particular stand (that  is,  there is  no arbitration agreement),  he is  not

2  (2006) 5 SCC 275 Civil Appeal No. 2439 of 2018 Page 9 of 18 (arising out of SLP(C) No. 29519 of 2015)

barred  from  changing  his  stand  subsequently  or estopped  from  seeking  arbitration.  [See U.P.  Rajkiya Nirman  Nigam  Ltd. v. Indure  (P)  Ltd. [(1996)  2  SCC 667]  where  the  contention  based  on  estoppel  was negatived  while  considering  a  reserve  (sic reverse) situation [Ed.: Para 12] .]”

13) Mr.  Ganguli,  the  learned  senior  counsel  appearing  for  the

respondent,  on the other  hand, submitted that  clause 2 of  the

Agreement  entered  into  between  the  appellant  and  the

respondent  clearly  evinced  that  there  was  only  a  qualified

incorporation  of  those  terms  and  conditions  of  the  contract

between the employer and the respondent which related to the

works and the quality.  Insofar as clause 45 is concerned, there

was no conscious acceptance thereof between the parties and

that was the reason that even the respondent had no knowledge

about the said clause and, therefore, he did not mention so even

in his  petition filed under Section 9 of  the Act.   He, therefore,

submitted  that  the  High  Court  has  rightly  relied  upon  M.R.

Engineers and Contractors Private Limited case in dismissing

the petition of the petitioner.  He also placed reliance upon the

judgments of this Court in  Larsen & Toubro Limited v.  Mohan

Lal  Harbans  Lal  Bhayana3 and  Sharma  and  Associates

Contractors  Private  Limited  v.  Progressive  Constructions

3  (2015) 2 SCC 461 Civil Appeal No. 2439 of 2018 Page 10 of 18 (arising out of SLP(C) No. 29519 of 2015)

Limited4.

14) After considering the respective submissions, we are inclined to

agree with the respondent and, therefore, do not find any fault

with the impugned judgment of the High Court.

15) In M.R. Engineers and Contractors Private Limited case, this

Court considered the true intent and scope of Section 7 of the Act

which  deals  with  ‘arbitration  agreement’.  Relevant  portion  of

Section 7 reads as under:

“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.

xxx xxx xxx

(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.”

16) As  per  sub-section  (5),  an  arbitration  clause  contained  in  an

independent document can also be imported and engrafted in the

contract between the parties, by reference to such independent

document in the contract, even if there is no specific provision for

arbitration.  However, the Court noted that such a recourse can

4  (2017) 5 SCC 743 Civil Appeal No. 2439 of 2018 Page 11 of 18 (arising out of SLP(C) No. 29519 of 2015)

be  adopted  only  ‘if  the  reference  is  such  as  to  make  the

arbitration clause in such document, a part of the contract.’  This

interpretation to sub-section (5) of Section 7 was elaborated in

the following manner:

“14. The  wording  of  Section  7(5)  of  the  Act  makes  it clear that a mere reference to a document would not have the effect of making an arbitration clause from that document, a part of the contract. The reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause contained in  the  document,  into  the  contract.  If  the  legislative intent was to import an arbitration clause from another document,  merely  on  reference to  such document  in the  contract,  sub-section  (5)  would  not  contain  the significant later part which reads: “and the reference is such  as  to  make  that  arbitration  clause  part  of  the contract”,  but  would  have  stopped  with  the  first  part which reads:

“7.  (5)  The  reference  in  a  contract  to  a document  containing  an  arbitration  clause constitutes  an  arbitration  agreement  if  the contract is in writing….”

15. Section  7(5)  therefore  requires a conscious acceptance of  the arbitration clause from another  document,  by  the  parties,  as  a  part  of  their contract, before such arbitration clause could be read as a part of the contract between the parties. But the Act does not contain any indication or guidelines as to the  conditions  to  be  fulfilled  before  a  reference to  a document  in  a  contract  can  be  construed  as  a reference incorporating an arbitration clause contained in such document into the contract. In the absence of such  statutory  guidelines,  the  normal  rules  of construction of contracts will have to be followed.

16. There is a difference between reference to another document  in  a  contract  and  incorporation  of  another document in a contract, by reference. In the first case, the parties intend to adopt only specific portions or part of  the  referred  document  for  the  purposes  of  the

Civil Appeal No. 2439 of 2018 Page 12 of 18 (arising out of SLP(C) No. 29519 of 2015)

contract.  In  the  second  case,  the  parties  intend  to incorporate the referred document in entirety, into the contract.  Therefore  when  there  is  a  reference  to  a document  in  a  contract,  the  court  has  to  consider whether  the  reference  to  the  document  is  with  the intention of incorporating the contents of that document in  entirety  into  the  contract,  or  with  the  intention  of adopting  or  borrowing  specific  portions  of  the  said document for application to the contract.”

17) After some further discussion on this aspect with reference to the

existing case law as well as extracts from Russell on arbitration,

the Court summed up the position as under:

“24. The scope and intent of Section 7(5) of the Act may therefore be summarised thus:

(i) An arbitration clause in another document, would get incorporated  into  a  contract  by  reference,  if  the following conditions are fulfilled:

(1) the contract should contain a clear reference to the documents containing arbitration clause,

(2) the reference to the other document should clearly indicate  an  intention  to  incorporate  the  arbitration clause into the contract,

(3) the arbitration clause should be appropriate, that is capable of  application in respect of disputes under the contract and should not be repugnant to any term of the contract.

(ii)  When the  parties  enter  into  a  contract,  making  a general  reference  to  another  contract,  such  general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract  between  the  parties.  The  arbitration  clause from  another  contract  can  be  incorporated  into  the contract  (where  such  reference  is  made),  only  by  a specific reference to arbitration clause.

Civil Appeal No. 2439 of 2018 Page 13 of 18 (arising out of SLP(C) No. 29519 of 2015)

(iii) Where a contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, the terms of the  referred  contract  in  regard  to execution/performance  alone  will  apply,  and  not  the arbitration  agreement  in  the  referred  contract,  unless there is special reference to the arbitration clause also.

(iv) Where the contract provides that the standard form of  terms  and  conditions  of  an  independent  trade  or professional  institution  (as  for  example  the  standard terms  and  conditions  of  a  trade  association  or architects  association)  will  bind  them or  apply  to  the contract,  such standard form of terms and conditions including any provision for arbitration in such standard terms  and  conditions,  shall  be  deemed  to  be incorporated by reference. Sometimes the contract may also say that the parties are familiar with those terms and  conditions  or  that  the  parties  have  read  and understood the said terms and conditions.

(v)  Where  the  contract  between  the  parties stipulates that the conditions of contract of one of the parties to the contract shall form a part of their contract (as for example the general conditions of contract of the Government where the Government is  a  party),  the  arbitration clause forming part  of such general conditions of contract will apply to the contract between the parties.”

18) When we apply the aforesaid ratio, we find that the High Court

has correctly held that, in the instant case, it was not intended to

make the arbitration clause as a part of the contract between the

appellant  and the respondent.   Clause 2  and clause 9.10 are

given correct interpretation by the High Court and discussion in

this behalf has already been extracted above.  By these clauses,

Civil Appeal No. 2439 of 2018 Page 14 of 18 (arising out of SLP(C) No. 29519 of 2015)

only  those  conditions  and  sub-conditions  of  the  contract,

specification  etc.  which  relate  to  the  works  and  quality  are

incorporated.   Clause  9.10  only  talks  of  ‘items’ which  are  not

mentioned in the contract and terms and conditions relating to the

execution of those items are to be taken from the main contracts.

Reference to clause 8.7 is also inconsequential.  By this clause

only, those terms contained in the main agreement which relate to

‘terms  of  work’  are  incorporated.   Procedure  relating  to

‘termination’  is  altogether  different  from  resolution  of  disputes.

Dispute may arise even  de hors the termination of the contract

and is an altogether different aspect, not necessarily connected

with the termination of work.   

19) In  Alimenta  S.A.  v.  National  Agricultural  Coop.  Mktg.

Federation of India Ltd.5,  the question was as to whether the

arbitration  clause  in  Fosfa-20  was  incorporated  in  the  first

contract by way of clause 11 and in the second contract by virtue

of clause 9.  The Court held that while the arbitration clause was

incorporated in the first contract, the same was not incorporated

in the second contract.  How the matter has to be looked into, for

determining the same, was discussed in the following manner:

5  (1987) 1 SCC 615 Civil Appeal No. 2439 of 2018 Page 15 of 18 (arising out of SLP(C) No. 29519 of 2015)

“13.  …  There  is  a  good  deal  of  difference  between Clause  9  of  this  contract  and  Clause  11  of  the  first contract.  Clause  11  has  been  couched  in  general words,  but  Clause  9  refers  to  all  other  terms  and conditions  for  supply.  The  High  Court  has  taken  the view that by Clause 9 the terms and conditions of the first contract which had bearing on the supply of HPS were  incorporated  into  the  second  contract,  and the term about arbitration not being incidental to supply of goods, could not be held to have been lifted as well from the first contract into the second one.

14. It is, however, contended on behalf of the appellant that the High Court was wrong in its view that a term about arbitration is not a term of supply of goods. We do not think that the contention is sound. It has been rightly  pointed out  by the High Court  that  the normal incidents of terms and conditions of supply are those which are connected with supply, such as, its mode and process,  time factor,  inspection  and approval,  if  any, reliability for transit,  incidental  expenses,  etc.  We are unable to accept the contention of the appellant that an arbitration  clause  is  a  term  of  supply.  There  is  no proposition of law that when a contract is entered into for  supply of  goods,  the arbitration clause must  form part of such a contract. The parties may choose some other method for the purpose of resolving any dispute that may arise between them. But in such a contract the incidents of supply generally form part of the terms and conditions of the contract. The first contract includes the terms and conditions of supply and as Clause 9 refers to these terms and conditions of supply, it is difficult to hold that the arbitration clause is also referred to and, as such, incorporated into the second contract. When the  incorporation  clause  refers  to  certain  particular terms and conditions, only those terms and conditions are incorporated and not the arbitration clause. In the present case, Clause 9 specifically refers to the terms and  conditions  of  supply  of  the  first  contract  and, accordingly,  only  those  terms  and  conditions  are incorporated  into  the  second  contract  and  not  the arbitration clause. The High Court has taken the correct view in respect of the second contract also.”

(emphasis supplied)   

Civil Appeal No. 2439 of 2018 Page 16 of 18 (arising out of SLP(C) No. 29519 of 2015)

20) This  judgment  is  noted  in  M.R.  Engineers  and  Contractors

Private Limited case as well and in the facts of M.R. Engineers

and Contractors Private Limited, the Court held that there was

no  incorporation  of  arbitration  clause.   Following  discussion

throws light to decide the issue in this case as well:

“37. In the present case the wording of  the arbitration clause  in  the  main  contract  between  the  PW Department  and the  contractor  makes  it  clear  that  it cannot  be  applied  to  the  sub-contract  between  the contractor  and  the  sub-contractor.  The  arbitration clause  in  the  main  contract  states  that  the  disputes which  are  to  be  referred  to  the  committee  of  three arbitrators under Clause 67.3 are disputes in regard to which the decision of the Engineer (“Engineer” refers to person  appointed  by  the  State  of  Kerala  to  act  as Engineer for the purpose of the contract between the PW Department and the respondent) has not become final and binding pursuant to Clause 67.1 or disputes in regard  to  which  amicable  settlement  has  not  been reached  between  the  State  of  Kerala  and  the respondent  within  the  period  stated  in  Clause  67.2. Obviously neither Clause 67.1 nor 67.2 will apply as the question of “Engineer” issuing any decision in a dispute between the contractor and the sub-contractor, or any negotiations being held with the Engineer in regard to the  disputes  between  the  contractor  and  the  sub- contractor  does not  arise.  The position would have been  quite  different  if  the  arbitration  clause  had used the words “all  disputes arising between the parties”  or  “all  disputes  arising  under  this contract”.  Secondly,  the  arbitration  clause contemplates a committee of three arbitrators, one each to be appointed by the State of Kerala and the respondent  and  the  third  (Chairman)  to  be nominated  by  the  Director  General,  Road Development, Ministry of Surface Transport, Roads Wing, Government of India. There is no question of such nomination in the case of a dispute between the contractor and the sub-contractor.”

Civil Appeal No. 2439 of 2018 Page 17 of 18 (arising out of SLP(C) No. 29519 of 2015)

21) In view of the aforesaid, the appeal stands dismissed.   

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; FEBRUARY  23, 2018.

Civil Appeal No. 2439 of 2018 Page 18 of 18 (arising out of SLP(C) No. 29519 of 2015)