- 1 - HC-KAR NC: 2025:KHC:36281 CMP No.201 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH CIVIL MISC. PETITION NO.201 OF 2024 BETWEEN: 1. M/S UNITES SALES CORPORATION A REGISTERED PARTNERSHIP FIRM HAVING ITS REGISTERED OFFICE AT S- 14, SACRED WORLD S NO.75/2/2B JAGTAP CHOWK, WANAWADI PUNE - 411040 REP BY ITS MANAGING PARTNER MR. BADRI MANDER. …PETITIONER (BY SRI. RAGHAVENDRA S., ADVOCATE) AND: 1. UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF DEFENCE CENTRAL SECRETARIAT DELHI - 110001. 2. ENGINEER - IN- CHIEF DIRECTORATE CONTRACT MANAGEMENT MILITARY ENGINEER SERVICES INTEGRATED HQ AND MOD (ARMY ) KASHMIR HOUSE RAJAJI NARG NEW DELHI - 110001. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36281 CMP No.201 of 2024 3. HQ CHIEF ENGINEER (AIRFORCE) NO 2 DC AREA MES ROAD YESHWANTHPURA BENGALURU - 560022. 4. COMMANDER WORKS ENGINEER AIR FORCE HQ SAC IAF COMPLEX AKKULAM THURUVIKKAL POST TRIVANDRUM - 695011. 5. THE GARRISON ENGINEER (AF) SULUR MILITARY ENGINEER SERVICE KANGAYAMPALAYAM POST COIMBATORE DISTRICT - 641401. …RESPONDENTS (BY SRI. CHANDRACHUD A., CGC) THIS CMP IS FILED UNDER SEC.11(5) AND (6) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO APPOINT ANY INDEPENDENT PERSON, HAVING A DEGREE IN ENGINEERING OR EQUIVALENT OR HAVING PASSED FINAL/DIRECT FINAL EXAMINATION OF SUB-DIVISION II OF INSTITUTION OF SURVEYOR (INDIA) RECOGNIZED BY GOVERNMENT OF INDIA, OR ANY OTHER PERSON, AS THE SOLE ARBITRATOR TO ADJUDICATE THE DISPUTES THAT HAS ARISEN BETWEEN THE PARTIES HEREIN IN ACCORDANCE WITH CLAUSE 70 OF THE GENERAL CONDITIONS OF THE CONTRACT ACT AT ANNEXURE - C ARISING OUT OF TENDER ACCEPTANCE AGREEMENT DATED 25-10-2017 AT ANNEXURE-B AND PASS SUCH OTHER OR FURTHER ORDER/S AS THIS HONBLE COURT DEEMS FIT AND NECESSARY ON THE FACTS AND CIRCUMSTANCES OF THE ABOVE CASE. - 3 - HC-KAR NC: 2025:KHC:36281 CMP No.201 of 2024 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL ORDER Heard Sri. Raghavendra S., learned counsel appearing for the petitioner and Sri. Chandrachud A., CGC appearing for respondent Nos.1 to 5. 2. In this petition, the petitioner has sought for appointment of an Arbitrator to adjudicate the disputes that have arisen between the parties in relation to the Agreement dated 25.10.2017 (Annexure-B) in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’). 3. Sri. Raghavendra S., learned counsel appearing for the petitioner, invited the attention of this Court to Clause 70 of the Military Engineer Services General Conditions of Contracts (Annexure- - 4 - HC-KAR NC: 2025:KHC:36281 CMP No.201 of 2024 C) and submitted that since the bills raised by the petitioner have not been accepted by the respondents, the petitioner is claiming damages. Accordingly, the petitioner seeks appointment of an Arbitrator as per Clause 70, of Annexure-C to the petition. To support his contention, the petitioner has relied upon the judgment in the case of Rajiv Vyas vs. Johnwin reported in 2010 (6) MHLJ. 4. Per contra, Sri. Chandrachud A., CGC appearing for respondent Nos.1 to 5 invited the attention to Clause/Condition No.26 of the Tender Acceptance Agreement produced at Annexure-B dated 25.10.2017 and submitted that, before resorting for the appointment of an Arbitrator in respect of the dispute arising between the parties, compliance with Clause /Condition No.26 of the Tender Agreement, which provides for conciliation has to be made. In this regard, learned counsel for the respondents relied - 5 - HC-KAR NC: 2025:KHC:36281 CMP No.201 of 2024 upon the judgment of this Court in CMP No.24 of 2022, dated 10.06.2022. 5. In light of the submissions made by the learned counsel for the parties, it is not in dispute that Clause 70 of the Military Engineer Services General Conditions of Contract provides for appointment of an Arbitrator. However, the said provision must be read in conjunction with Clause 26 of the Tender Agreement dated 25.10.2017 (Annexure-B to the petition). Clause 26 of Annexure-B provides for a process of conciliation between the parties in the event of any dispute. Accordingly, the condition precedent for appointment of an Arbitrator is that the parties must first attempt for conciliation as stipulated under Clause 26 of Tender Agreement produced at Annexure-B. In this regard, this Court, in CMP No.24 of 2022 at paragraph 21, has observed as under: - 6 - HC-KAR NC: 2025:KHC:36281 CMP No.201 of 2024 "21. In the end, I am of the view considered view that, the petitioner having not fulfilled the precondition of conciliation before invoking arbitration clause under the work order dated 15.01.2014, has no right to invoke the arbitration clause at this stage. Petitioner under Section 11(6) of the Arbitration and conciliation Act, is premature and liable to be dismissed. It is hereby dismissed." 6. It is also relevant to mention the judgment of the High Court of Delhi in the case of Welspun Enterprises Ltd., vs. NCC Ltd., reported in 2022 SCC OnLine Del 3296, wherein the Division Bench had occasion to relegate the parties to mutual negotiation in terms of the conditions stipulated in the agreement before proceeding with the appointment of an Arbitrator under the Arbitration and Conciliation Act, 1996. In view of the above, I am of the considered view that the judgment referred to by the learned counsel for the petitioner is not applicable to the present case, in light of the binding precedent of - 7 - HC-KAR NC: 2025:KHC:36281 CMP No.201 of 2024 this Court and the Division Bench of the Delhi High Court. In that view of the matter, the petitioner is permitted to avail the remedy of conciliation process as per Clause/Condition No.26 of the Tender Agreement produced at Annexure-B. It is needless to say that, after completion of the said process, it is open for the petitioner to approach the appropriate forum for appointment of an Arbitrator, if deems necessary. Accordingly, the petition is dismissed. SD/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 31