Synopsis

The petitioner, a construction company, entered into a contract with Maharashtra Maritime Board for building an office in BKC, Mumbai. Disputes arose and the Board terminated the contract. The petitioner invoked arbitration under Clause 25 of the General Conditions of Contract (GCC) which provided for dispute resolution through a Dispute Review Expert and then arbitration. The Board opposed arbitration, arguing that under Clause 36 of the Contractor’s Bid, the only remedy was internal departmental appeals (Superintending Engineer, Chief Engineer, Secretary) and that termination disputes were not arbitrable (also relying on SCC Clause 3.3 which had been deleted). The Bombay High Court held that a clear arbitration agreement exists under Clause 25.2 and 25.3 of GCC; conflicting clauses do not negate arbitration; deletion of SCC Clause 3.3 (excluding termination from arbitration) was conscious and showed intent to arbitrate termination disputes; the internal appeal mechanism was not a mandatory pre-arbitration procedure because the termination was decided by the CEO (who was higher than Chief Engineer). The court appointed a former judge as sole arbitrator and converted the Section 9 petition into an application under Section 17 to be decided by the arbitrator.

Court: High Court of Judicature at Bombay, Ordinary Original Civil Jurisdiction

Coram: Hon’ble Mr. Justice Sandeep V. Marne

Date of Judgment: 27th April 2026

Citation: 2026:BHC-OS:10778 (Commercial Arbitration Petition No. 1070 of 2025 with Commercial Arbitration Application No. 675 of 2025)

Core Law: Arbitration and Conciliation Act, 1996 – Sections 11 (appointment of arbitrator), 9 (interim measures), 16 (competence-competence), 2(1)(a) (arbitration definition)

1. Heading of the judgment

High court of judicature at bombay ordinary original civil jurisdiction

Commercial arbitration petition no. 1070 of 2025 with commercial arbitration application no. 675 of 2025

Generic engineering construction and projects ltd (petitioner/applicant) vs. Maharashtra maritime board (respondent)

Coram: hon’ble mr. justice sandeep v. marne

Reserved on: 10th april, 2026; pronounced on: 27th april, 2026

2. Legal framework

Major laws and provisions involved:

• Arbitration and conciliation act, 1996 – section 11 (appointment of arbitrator by court), section 9 (interim measures), section 17 (interim measures by arbitral tribunal), section 16 (arbitral tribunal’s power to rule on its own jurisdiction), section 2(1)(a) (arbitration includes any arbitration whether administered by institution or not)

• Indian contract act, 1872 – principles of contract interpretation, order of priority of documents

Subject matter of the judgment:

Whether, despite the existence of an arbitration clause (Clause 25 of GCC), the presence of other clauses providing for internal departmental appeals (Clause 36 of Contractor’s Bid) and a deleted clause in the Special Conditions of Contract (SCC) regarding non-arbitrability of termination disputes, an arbitration agreement can be held to exist, and whether the court should appoint an arbitrator under Section 11.

Key legal principles applied:

• Existence of arbitration agreement to be determined primarily from the express clause: Clause 25.2 and 25.3 of GCC clearly provide for reference of dispute to an arbitrator after the Dispute Review Expert’s decision (or if no referral within 28 days, the expert’s decision becomes final). This constitutes an arbitration agreement under Section 7 of the Act.

• Conflicting or incon

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