HIGH COURT OF JUDICATURE AT ALLAHABAD ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 124 of 2023 Court No. - 44 HON'BLE SAUMITRA DAYAL SINGH, J. 1. Heard Shri Abhinav Jain through Video Conferencing assisted by Shri Yash Singhal, learned counsel for the applicant and Shri Satyendra Yadav, learned Advocate holding brief of Shri Baleshwar Chaturvedi, learned counsel for the Opposite Party. 2. The present application has been filed seeking appointment of an Arbitrator under the Arbitration and Conciliation Act, 1996, with respect to a payment dispute between the parties, for the work "Special Well/Pile Foundation for 220 K.V. Sohawal (P.G.)-Gonda/Bahraich Line on Ghaghra/Saryu River Tower, Location No.-20/8 and 20/9 (hereinafter referred to as "work") paragraph no.3 of the application against total value of the work Rs.12,10,24,629.69/-, the applicant claims Rs.2,49,85,640.61/- together with security. 3. Referring to Clause 32(b) of the General Conditions of the Contract and further referring to the statutory notice dated 17.04.2023, it has been submitted-an arbitrable dispute has arisen. Since no arbitrator has been appointed by the non-applicant, the present application has been filed. 4. It is the submission of Shri Abhinav Jain, a singular conclusion Versus Counsel for Applicant(s) : Abhijeet Mukherji, Rohan Gupta, Yash Singhal Counsel for Opposite Party(s) : Baleshwar Chaturvedi M/S Ram Gopal Agrawal .....Applicant(s) Up Power Transmission Corporation Ltd. And 2 Others .....Opposite Party(s) that may be drawn from a plain reading of the said contract clause is-the parties had agreed to resolve their disputes through arbitration. Other words and expressions have been used under that clause only to provide for a mechanism to invoke arbitration. To the extent, the said clause provides for forum of arbitration to resolve any dispute that may arise between the parties (under above work order) and to the extent, the non-applicant has failed to appoint an Arbitrator, despite specific notice, the jurisdiction of the Court has been rightly invoked. 5. In support of his submission, Shri Abhinav Jain has further submitted, any error on the part of the non-applicant in not specifically incorporating 'Clause 34' referred to Clause 32 (b), is in the nature of a typographical error that may not defeat the arbitration clause clearly inferrable from the language of Clause 32 (b) of the General Conditions of Contract, itself. 6. On the other hand, learned counsel for the non-applicant would submit, in absence of specific arbitration clause, no inference may be drawn as to its existence. Unless an arbitration clause is shown to exist-in terms or by necessary implication, disputes may not be referred to arbitration. 7. Having heard learned counsel for the parties and having perused the record, we consider it appropriate to extract Clause 32 (a) and 32 (b) of the General Conditions of Contract. It reads as below: "Clause 32 (a)- If the contractor considers any record or ruling of the Engineer-in-charge or his subordinate to be unfair, he shall Clause 32 (a)- If the contractor considers any work demanded of him to be outside the requirements of immediately upon such work being demanded or such record or ruling being made, ask in writing for written instruction or decisions where open he shall proceed without delay to reform the work confirm to the record or ruling and within twenty days (20 days) after date of the receipt of the written instructions of decisions he shall file a written protest with the Engineer-in-charge with a copy of Engineer or the contract Stating clearly and in detail the basis of his objections, except for such protest objections as are made or ARCO No. 124 of 2023 2 record in the manner herein specified and within the time limit stated the records, ruling instruction, or decisions of the Engineer-in-charge contained shall be final and conclusive, instruction and or decision of the Engineer-in-charge contained in letter transmitting drawings to the contractor shall be considered as written instruction or decision of the Engineer of the contract subject to protest or objections as wherein provided. Clause 32 (b) if the contractor is dissatisfied with the final decision of the engineer of the contract in pursuance of clause 32 (a) the contractor may within twenty eight (28) days after receiving notice of such decision, give notice in writing requiring that the matter be submitted to arbitration as envisaged in clause 34 and furnish detailed particulars of the dispute or difference specifying clearly the point at issue. If the contract fails to give such notice within the period of twenty eight days as stipulated above the decision of the Engineer of the contract shall be conclusive and binding on the contractor. ACTION WHERE NO SPECIFIATION IS GIVEN Clause-35 In the case of any class of work for which there is no specification in the contract such work shall be carried out in accordance with the detailed specification (latest Published by I.S.I., New Delhi and in the event of there being no detailed specification for the same the work shall be carried out in all respects in accordance with the instructions and requirements of the Engineer-in-charge/Engineer of the contract CONTRACTOR'S PERCENTAGE Clause-36 The addition and deductions on the percentage referred to at page 3 of the accepted tender will be calculated on the gross and not the net amount of the bills for the work done." (emphasis supplied) 8. In the first place, clearly, there is no Clause 33 or 34 in the General Conditions of Contract to which the present applicant has signed and thus executed the contract. In contrast, it is the own case of the applicant that in another contract awarded to it, not only Clause 32 (a) and 32 (b) was specifically incorporated but there exist Clauses 33 and 34, as well. For ready reference, those clauses existing in the other contract executed between the parties read as below: ARCO No. 124 of 2023 3 "Clause 33- The contractor shall obtain from the Stores of the Engineer-in-charge all stores and all imported materials, if required to any considerable extent for the work or any pet thereof or in making articles required therefore or in connection therewith. The value of such stores and articles as may be supplied to the Contractor by the Engineer-in-charge will be debited to the Contractor in his account at the rates shown in the schedule attached to the contract, and if they are not entered in the schedule, they will be debited at cost price, which for the purposes of this Contract shall include the cost of carriage and all other expenses whatsoever which shall have been incurred obtaining in delivery of the same at the store aforesaid The Engineer-in-charge may issue materials to Contractor from existing stock if he asks for any in excess of those entered in the schedule. In such cases the price charges must be stock rate or market rate. Whichever is higher. Clause 34-If any dispute, difference or controversy shall at any time arise between the Contractor on the one hand and the U.P. Power Corps. Limited and the "Engineer of the Contract" on the other touching the contract, or as to be true construction meaning and intent of any part of condition of the same or as to the manner or execution or as to the quality or description of, or payment for the same or us to the true intent, meaning, interpretation, construction or effect of the clauses of the contract, specifications or drawings or any of them, or as the mode of carrying the contract in to effects or as to the breach a legal breach of the contract or a legal breach of as to obviation or compensating for the commission of any such breach or as to anything to be the clauses of the contract, specifications or drawings or any of them, or as to any claims on account of such breach, or as to any other matter or thing whatsoever connected with or arising out of contract and whether before or during the progress or after the completion of the contract, such questions, difference or dispute shall be referred for adjudication to the M. D. U.P. Power Trans. Corp. Limited, or to any other person nominated by him in this behalf and his decision in writing shall be final, binding and conclusive. This submission shall be deemed to be a submission to arbitration within the meaning of the India Arbitration Act. 1940 or any statutory modification thereof. The arbitrator may from time to time with consent of the parties enlarge the time for making and publishing the award. Upon every or any such reference, the costs of an incidental to the reference and award respectively shall be in the direction of the arbitrator, who shall be competent to determine the amount there of direct the same to be fixed as between solicitor and client or as same shall be borne and paid. Work under the contract shall, if reasonably possible, ARCO No. 124 of 2023 4 continue during the arbitration proceedings and payments due or payable by the Corporation shall be withheld on account of such proceedings." 9. Seen in that light, Clause 32 (b) is a clause that may be invoked only on fulfillment of conditions contained in Clause 32 (a) of the agreement. Plain reading of Clause 32 (a) refers to disputes that may arise between the parties on "work" being demanded from the contractor i.e. the applicant here, by the non-applicant and such direction being opposed or resisted by the contractor. If such direction is not 'confirmed' by the contractor/applicant here, within 20 days, the decision of the Engineer-in-Charge would become final. Only on fulfillment of that condition, Clause 32 (b) may be invoked. It provides the forum of arbitration to the contractor/applicant here, to test the 'final decision' of the Engineer-in-Charge, through arbitration. Plainly, payment disputes are not disputes falling under the cover of Clause 32 (a). Therefore, on a plain reading of Clause 32 (b) it does not contemplate or allow for such payment dispute to be referred to arbitration, independent of Clause 32 (a). 10. On the other hand, Clause 34 of the contract for "Well Foundation for 220 K.V. Sohawal-Gonda double circuit Transmission Line at Ghaghra River", clearly provides an arbitration clause, independent of Clause 32 (a) read with Clause (b), as noticed above. It is a much wider clause that may be invoked on a simple dispute, at the instance of either party. 11. That leads to a second distinction in the present facts. While Clause 32 (a) read with Clause 32 (b) provide for arbitration at the instance of the contractor/applicant here, specifically, in the context of 'final decision' if the Engineer-in-Charge, with respect to any direction issued to the contract/applicant here, Clause 34 in the other contract is an independent and wide arbitration clause. Therefore, in absence of Clause 34 being specifically included in the present contract, it is difficult to reason that by necessary implication, such clause exists. To do that would be to do violence to the contract entered between the parties. It would also ARCO No. 124 of 2023 5 amount to the Court introducing a clause or reading a clause that is plainly non existent. That may never be done by Courts, as it may amount to rewriting the contract between the parties. 12. As to the typographical or other mistake claimed by the applicant, I am equally unimpressed by the submission being advanced. Matters of contract are matters of letter/written words, duly discussed, agreed to which parties sign or affix their signatures as evidence of agreement reached. Neither any Supplementary Agreement is shown to have been reached between the parties nor there is any other evidence to infer existence of such facts. Consequently, it is not possible to read Clause 34 of the other contract in the present contract giving rise to this application. 13. It is settled position in law that arbitration may arise only where parties have agreed to arbitration and not otherwise. Since such is not the case here, the present application must fail and it is accordingly, dismissed, leaving it open to the applicant to pursue other remedies in accordance with law. 14. No order as to costs. September 12, 2025 Anurag/- ARCO No. 124 of 2023 6 (Saumitra Dayal Singh,J.) Digitally signed by :- ANURAG JAISWAL High Court of Judicature at Allahabad