ELITE ENGINEERING AND CONSTRUCTION (HYD.) PRIVATE LIMITED Vs. TECHTRANS CONSTRUCTION INDIA PRIVATE LIMITED

JUDGEMENT

(1.) 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 Signature Not Verified engineering, financing, procurement, construction, operation and 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 , 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.