NTPC LTD. VERSUS M/S SPML INFRA LTD.
NTPC LTD. VERSUS M/S SPML INFRA LTD.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4778 of 2022
NTPC LTD. ....APPELLANT
VERSUS
M/S SPML INFRA LTD. ...RESPONDENT
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
1. The present appeal arises out of a decision of the High Court
of Delhi1, allowing the Respondent’s application under Section
11(6) of the Arbitration and Conciliation Act, 19962 for the
constitution of an Arbitral Tribunal. It is the case of Appellant
NTPC that there were no subsisting disputes between the parties
in view of the Settlement Agreement dated 27.05.2020 and that
the application for arbitration is an afterthought and abuse of the
process.
2. By an order dated 15.07.2022, this Court, while granting
leave, stayed all further proceedings before the Arbitral Tribunal.
1 In ARBP No. 477/2020, dated 08.04.2021.
2 hereinafter ‘the Act’.
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Short facts giving rise to the filing of the petition under Section 11
of the Act and leading to the impugned decision of the High Court
are as follows.
3. Facts: The Appellant and Respondent, hereinafter referred
to as NTPC and SPML respectively, entered into a contract for
“Installation Services for Station Piping Package for Simhadri Super
Thermal Power Project Stage II at NTPC at Simhadri,
Vishakapatnam”. In terms of the contract agreement, SPML
furnished Performance Bank Guarantees and Advanced Bank
Guarantees3 for Rs. 14,96,89,136/- to secure the Appellant.
4. Pursuant to the successful completion of the project, a
Completion Certificate was issued by NTPC on 27.03.2019. By its
letter dated 10.04.2019, NTPC informed SPML that the final
payment under the contract would be released upon the receipt of
a No-Demand Certificate from SPML. The No-Demand Certificate
was issued by SPML on 12.04.2019 and NTPC also released the
final payment amounting to Rs. 1,40,00,000/- in April 2019. The
Bank Guarantees were however withheld.
3 hereinafter referred to as ‘Bank Guarantees’.
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5. On 14.05.2019, NTPC informed SPML that the Bank
Guarantees were withheld on account of pending liabilities and
disputes between the parties with respect to other projects at
Bongaigon, Barh, and Korba. SPML naturally protested. By its
letter dated 15.05.2019, SPML informed NTPC that the retention
of Bank Guarantees, despite issuance of the Completion Certificate
and the No-Demand Certificate, by linking them to some other
projects, was unjustified. Following the protest, SPML raised a
demand of Rs. 72,01,53,899/- from NTPC as liabilities recoverable
for actions attributable to NTPC under this very contract.
6. By its letter dated 12.06.2019, SPML called upon NTPC to
appoint an Adjudicator for resolving pending disputes in terms of
the General and Special Conditions of Contract. As no action was
taken by NTPC, SPML moved the Delhi High Court by filing Writ
Petition No. 7213 of 2019 under Article 226 of the Constitution, for
the release of the Bank Guarantees. The prayer in the Writ Petition
is to:
“(a) Pass an appropriate Writ, Order or Direction
quashing the e-mail dated 14.05.2019 issued by the
Respondent insofar as it pertains to the release of the
Bank Guarantees being (a) 0040ILG002609, (b)
0040ILG001109, (C) 0040ILG001209, (d)
0040ILG001309 and direct the Respondent to release
the aforesaid Bank Guarantees forthwith, and
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(b) Pass any other order or such other orders as may be
necessary in the interests of justice, equity and good
conscience.”
7. While issuing notice, the High Court, by its interim order
dated 08.07.2019, directed NTPC not to encash the Bank
Guarantees, and further directed SPML to keep the Bank
Guarantees alive.
8. Pending the Writ Petition, negotiations between the parties
culminated in a Settlement Agreement on 27.05.2020. Through
the Settlement Agreement, NTPC agreed to release the withheld
Bank Guarantees. SPML also agreed to withdraw its pending Writ
Petition and undertook not to initiate any other proceedings,
including arbitration, under the subject contract.
9. Following the Settlement Agreement, the Bank Guarantees
were released by NTPC on 30.06.2020. SPML withdrew the Writ
Petition, as recorded in the Order of the Delhi High Court dated
21.09.2020.
10. After the aforesaid settlement of the disputes, followed by its
implementation, SPML repudiated the Settlement Agreement and
filed the present application under Section 11(6) of the Act in the
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Delhi High Court on 10.10.20204. In this Arbitration Petition,
SPML alleged coercion and economic duress in the execution of the
Settlement Agreement. The allegation was, that the retention of the
Bank Guarantees compelled SPML to accept the terms of
Settlement Agreement. SPML also averred that NTPC had failed to
appoint an arbitrator in spite of repeated requests, and therefore
the High Court must constitute an Arbitral Tribunal, in exercise of
its jurisdiction under the Act.
11. In its reply to the Arbitration Petition, NTPC raised two-fold
objections. Firstly, that SPML failed to follow the mandatory prearbitration procedure of first referring the disputes to an
Adjudicator as per the terms of the Dispute Resolution Clause5.
4 Clause 6.2 of the General Conditions of Contract is as under:
“6.2 Arbitration
6.2.1 If either the Employer or the Contractor is dissatisfied with the Adjudicator’s
decision, or if the Adjudicator fails to give a decision within twenty eight (28) days of a
dispute being referred to it, then either the Employer or the Contractor may, within fifty
six (56) days of such reference, give notice to the other party, with a copy for information
to the Adjudicator of its intention to commence arbitration, as hereinafter provided, as
to the matter in dispute, and no arbitration in respect of this matter may be commenced
unless such notice is given.”
5 Dispute resolution was provided under clause 6.1 of the General Conditions of Contract and
clause 3 of Special Conditions of Contract; hereinafter ‘the Dispute Resolution Clause’;
Clause 6.1 of the General Conditions of Contract is as under:
“6. Settlement of Disputes
6.1 Adjudicator
6.1.1 If any dispute of any kind whatsoever shall arise between the Employer and the
Contractor in connection with or arising out of the Contract, including without
prejudice to the generality of the foregoing, any question regarding its existence, validity
or termination, or the execution of the Facilities- whether during the progress of the
Facilities or after their completion and whether before or after the termination,
abandonment or breach of the Contract- the parties shall seek to resolve any such
dispute or difference by mutual consultation. If the parties fail to resolve such a dispute
or difference by mutual consultation, then the dispute shall be referred in writing by
either party to the Adjudicator, with a copy to the other party.”
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Secondly, that the disputes between the parties were settled by
virtue of the Settlement Agreement dated 27.05.2020. Acting
under the Settlement Agreement, NTPC released the Bank
Guarantees and SPML also proceeded to withdraw the Writ
Petition, and therefore, there was discharge of the contract by
accord and satisfaction. The allegations of coercion and economic
duress were denied as false, as all events occurred during the
subsistence of proceedings before the Delhi High Court, and the
parties willingly complied with the terms of the Settlement
Agreement. Further, the demand of Rs. 72,01,53,899/- was an
afterthought, never raised during the subsistence of the contract.
Under these circumstances, NTPC submitted that the application
under Section 11(6) of the Act must be rejected.
12. High Court: The High Court examined the correspondence
between the parties in detail. It rejected the first contention of
NTPC that SPML should have first resorted to an alternative
dispute resolution mechanism under the Dispute Resolution
Clause. It noted that such a request was, in fact, made by SPML
on an earlier occasion, but NTPC failed to respond to the same. On
the request for arbitration and the allegation of economic duress
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that allegedly prevailed in signing the Settlement Agreement, the
High Court observed that:
“66. SPML had invoked the arbitration clause and had
sought reference of disputes to arbitration. It had also
approached this Court. Thus, it would be difficult for
SPML to establish that it was economically coerced to
enter into the Settlement Agreement. However, this Court
is unable to accept that the dispute whether the Contract
Agreement stood discharged/novated in terms of the
Settlement Agreement, is ex facie untenable,
insubstantial or frivolous.”
(emphasis supplied)
13. After referring to the decisions of this Court in Mayavati
Trading (P) Ltd. v. Pradyuat Deb Burman6, Vidya Drolia and Ors. v.
Durga Trading Corporation7, Duro Felguera, S.A. v. Gangavaram
Port Ltd.8, Sanjiv Prakash v. Seema Kukreja and Ors.9, and Oriental
Insurance Co. Ltd. and Anr. v. Dicitex Furnishing Ltd.10, the High
Court allowed the Arbitration Petition. It appointed a former Judge
of the Delhi High Court as the Arbitrator on behalf of NTPC, and
directed the respective arbitrators to appoint the presiding
Arbitrator.
14. Submissions by the Parties: Shri Adarsh Tripathi, Advocate
appearing with and on behalf of the Solicitor General, for NTPC,
6 (2019) 8 SCC 714.
7 (2021) 2 SCC 1. (hereinafter ‘Vidya Drolia’)
8 (2017) 9 SCC 729.
9 (2021) 9 SCC 732.
10 (2020) 4 SCC 621.
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submitted that the Settlement Agreement dated 27.05.2020 was
arrived at during the pendency of the Writ Petition before the High
Court. The allegations of coercion and economic duress were,
therefore, false and unbelievable. He also submitted that SPML
never raised claims during the subsistence of the contract, before
the Completion Certificate was issued, or even before the final
payment was made. Further, the conduct of SPML, in waiting for
the release of the Bank Guarantees as per the Settlement
Agreement before withdrawing the Writ Petition, and thereafter
instituting the Arbitration Petition, clearly demonstrated that the
allegation of coercion was not bona fide. Finally, he submitted that
the High Court was under an obligation to undertake a limited
scrutiny to examine whether a matter is prima facie arbitrable. For
this purpose, he relied on a recent decision of this Court in Emaar
India Ltd. v. Tarun Aggarwal Projects LLP & Anr11.
15. Shri Jaideep Gupta, Advocate appearing for the Respondent,
SPML, has submitted that the legal principles governing an
application under Section 11(6) of the Act are well-settled following
the decisions of this Court in Mayavati Trading (supra) and Vidya
Drolia (supra). At the pre-referral stage, the jurisdiction of the court
11 2022 SCC OnLine SC 1328.
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is restricted to the examination of whether an arbitration
agreement exists between the parties. He submitted that the
decision of the High Court was unexceptionable, since the question
as to whether the Settlement Agreement was executed under
undue influence or coercion could be determined by an Arbitral
Tribunal.
16. Position of Law: In the present case, we are concerned with
the pre-referral jurisdiction of the High Court under Section 11 of
the Act and would like to underscore the limited scope within
which an application under Section 11(6)12 of the Act has to be
considered.
17. The position of law with respect to the pre-referral
jurisdiction, as it existed before the advent of Section 11(6A) in the
Act, was based on a well-articulated principle formulated by this
Court in National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd13. In
Boghara Polyfab, this Court held that the issue of non-arbitrability
12 Arbitration and Conciliation Act 1996 (Act 26 of 1996), Section 11(6):
"(6) Where, under an appointment procedure agreed upon by the parties,—
(a) a party fails to act as required under that procedure; or
(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected
of them under that procedure; or
(c) a person, including an institution, fails to perform any function entrusted to him
or it under that procedure, a party may request 1 [the Supreme Court or, as the
case may be, the High Court or any person or institution designated by such
Court]to take the necessary measure, unless the agreement on the appointment
procedure provides other means for securing the appointment.”
13 (2009) 1 SCC 267.
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of a dispute will have to be examined by the court in cases where
accord and discharge of the contract is alleged. Following the
principle in Boghara Polyfab, this Court in Union of India & Ors. v.
Master Construction Co.14 observed that when the validity of a
discharge voucher, no-claim certificate or a settlement agreement
is in dispute, the court must prima facie examine the credibility of
the allegations before referring the parties to arbitration. Yet again
in New India Assurance Co. Ltd. v. Genus Power Infrastructure
Ltd.15, this Court observed that allegations of fraud, coercion,
duress or undue influence must be prima facie substantiated
through evidence by the party raising the allegations.
14 (2011) 12 SCC 349:
“18. In our opinion, there is no rule of the absolute kind. In a case where the claimant
contends that a discharge voucher or no-claim certificate has been obtained by fraud,
coercion, duress or undue influence and the other side contests the correctness
thereof, the Chief Justice/his designate must look into this aspect to find out at least,
prima facie, whether or not the dispute is bona fide and genuine. Where the dispute
raised by the claimant with regard to validity of the discharge voucher or no-claim
certificate or settlement agreement, prima facie, appears to be lacking in credibility,
there may not be a necessity to refer the dispute for arbitration at all.”
15 (2015) 2 SCC 424:
“10. In our considered view, the plea raised by the respondent is bereft of any details
and particulars, and cannot be anything but a bald assertion. Given the fact that there
was no protest or demur raised around the time or soon after the letter of subrogation
was signed, that the notice dated 31-3-2011 itself was nearly after three weeks and
that the financial condition of the respondent was not so precarious that it was left
with no alternative but to accept the terms as suggested, we are of the firm view that
the discharge in the present case and signing of letter of subrogation were not because
of exercise of any undue influence. Such discharge and signing of letter of subrogation
was voluntary and free from any coercion or undue influence. In the circumstances,
we hold that upon execution of the letter of subrogation, there was full and final
settlement of the claim. Since our answer to the question, whether there was really
accord and satisfaction, is in the affirmative, in our view no arbitrable dispute existed
so as to exercise power under Section 11 of the Act. The High Court was not therefore
justified in exercising power under Section 11 of the Act.”
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18. In a legislative response to these precedents, through the
Arbitration and Conciliation (Amendment) Act 2015,16 sub-section
(6A) was added to Section 11 of the Act, which reads as follows:
“(6-A) The Supreme Court or, as the case may be, the
High Court, while considering any application under subsection (4) or sub-section (5) or sub-section (6), shall,
notwithstanding any judgment, decree or order of any
court, confine to the examination of the existence of an
arbitration agreement.”
(emphasis supplied)
19. Taking cognizance of the legislative change, this Court in
Duro Felguera (supra), noted that post the 2015 Amendments, the
jurisdiction of the court under Section 11(6) of the Act is limited to
examining whether an arbitration agreement exists between the
parties – “nothing more, nothing less”17.
20. However, in the year 2019, in United India Insurance Co. Ltd.
v. Antique Art Exports Pvt. Ltd.18, this Court had nevertheless
16 Arbitration and Conciliation (Amendment) Act 2015 (Act 3 of 2016); hereinafter referred to
as ‘the 2015 Amendments’.
17 Duro Felguera supra note 7, para 59 (concurring opinion of Kurian Joseph, J).
18 (2019) 5 SCC 362:
“21. In the instant case, prima facie no dispute subsisted after the discharge voucher
being signed by the respondent without any demur or protest and claim being finally
settled with accord and satisfaction and after 11 weeks of the settlement of claim a
letter was sent on 27-7-2016 for the first time raising a voice in the form of protest that
the discharge voucher was signed under undue influence and coercion with no
supportive prima facie evidence being placed on record in absence thereof, it must
follow that the claim had been settled with accord and satisfaction leaving no arbitral
dispute subsisting under the agreement to be referred to the arbitrator for
adjudication.
22. In our considered view, the High Court has committed a manifest error in passing
the impugned order and adopting a mechanical process in appointing the arbitrator
without any supportive evidence on record to prima facie substantiate that an arbitral
dispute subsisted under the agreement which needed to be referred to the arbitrator
for adjudication.”
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accepted an objection of ‘accord and satisfaction’ in opposition to
an application for reference to arbitration.
21. It did not take much time for this Court to reverse the
approach in Antique Art Exports (supra). A three-judge bench in
Mayavati Trading (supra) expressly overruled the above-referred
decision in Antique Art Exports, observing that:
“10. This being the position, it is clear that the law prior
to the 2015 Amendment that has been laid down by this
Court, which would have included going into whether
accord and satisfaction has taken place, has now been
legislatively overruled. This being the position, it is
difficult to agree with the reasoning contained in the
aforesaid judgment, as Section 11(6-A) is confined to the
examination of the existence of an arbitration agreement
and is to be understood in the narrow sense as has been
laid down in the judgment in Duro Felguera, SA.”
22. The entire case law on the subject was considered by a threejudge bench of this Court in Vidya Drolia (supra), and an
overarching principle with respect to the pre-referral jurisdiction
under Section 11(6) of the Act was laid down. The relevant portion
of the judgment is as follows:
“153. Accordingly, we hold that the expression
“existence of an arbitration agreement” in Section 11 of
the Arbitration Act, would include aspect of validity of an
arbitration agreement, albeit the court at the referral
stage would apply the prima facie test on the basis of
principles set out in this judgment. In cases of debatable
and disputable facts, and good reasonable arguable
case, etc., the court would force the parties to abide by
the arbitration agreement as the Arbitral Tribunal has
primary jurisdiction and authority to decide the disputes
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including the question of jurisdiction and nonarbitrability.
154. Discussion under the heading “Who Decides
Arbitrability?” can be crystallised as under:
154.1. Ratio of the decision in Patel Engg. Ltd. [SBP &
Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] on the scope of
judicial review by the court while deciding an application
under Sections 8 or 11 of the Arbitration Act, post the
amendments by Act 3 of 2016 (with retrospective effect
from 23-10-2015) and even post the amendments vide
Act 33 of 2019 (with effect from 9-8-2019), is no longer
applicable.
154.2. Scope of judicial review and jurisdiction of the
court under Sections 8 and 11 of the Arbitration Act is
identical but extremely limited and restricted.
154.3. The general rule and principle, in view of the
legislative mandate clear from Act 3 of 2016 and Act 33
of 2019, and the principle of severability and
competence-competence, is that the Arbitral Tribunal is
the preferred first authority to determine and decide all
questions of non-arbitrability. The court has been
conferred power of “second look” on aspects of nonarbitrability post the award in terms of sub-clauses (i), (ii)
or (iv) of Section 34(2)(a) or sub-clause (i) of Section
34(2)(b) of the Arbitration Act.
154.4. Rarely as a demurrer the court may interfere at
Section 8 or 11 stage when it is manifestly and ex facie
certain that the arbitration agreement is non-existent,
invalid or the disputes are non-arbitrable, though the
nature and facet of non-arbitrability would, to some
extent, determine the level and nature of judicial
scrutiny. The restricted and limited review is to check
and protect parties from being forced to arbitrate when
the matter is demonstrably “non-arbitrable” and to cut off
the deadwood. The court by default would refer the
matter when contentions relating to non-arbitrability are
plainly arguable; when consideration in summary
proceedings would be insufficient and inconclusive;
when facts are contested; when the party opposing
arbitration adopts delaying tactics or impairs conduct of
arbitration proceedings. This is not the stage for the court
to enter into a mini trial or elaborate review so as to usurp
the jurisdiction of the Arbitral Tribunal but to affirm and
uphold integrity and efficacy of arbitration as an
alternative dispute resolution mechanism.”
(emphasis supplied)
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23. The limited scope of judicial scrutiny at the pre-referral stage
is navigated through the test of a ‘prima facie review’. This is
explained as under:
“133. Prima facie case in the context of Section 8 is not to
be confused with the merits of the case put up by the
parties which has to be established before the Arbitral
Tribunal. It is restricted to the subject-matter of the suit
being prima facie arbitrable under a valid arbitration
agreement. Prima facie case means that the assertions
on these aspects are bona fide. When read with the
principles of separation and competence-competence and
Section 34 of the Arbitration Act, the referral court
without getting bogged down would compel the parties to
abide unless there are good and substantial reasons to
the contrary.
134. Prima facie examination is not full review but a
primary first review to weed out manifestly and ex facie
non-existent and invalid arbitration agreements and nonarbitrable disputes. The prima facie review at the
reference stage is to cut the deadwood and trim off the
side branches in straightforward cases where dismissal
is barefaced and pellucid and when on the facts and law
the litigation must stop at the first stage. Only when the
court is certain that no valid arbitration agreement exists
or the disputes/subject-matter are not arbitrable, the
application under Section 8 would be rejected. At this
stage, the court should not get lost in thickets and decide
debatable questions of facts. Referral proceedings are
preliminary and summary and not a mini trial…
…
138…On the other hand, issues relating to contract
formation, existence, validity and non-arbitrability would
be connected and intertwined with the issues underlying
the merits of the respective disputes/claims. They would
be factual and disputed and for the Arbitral Tribunal to
decide.
139. We would not like to be too prescriptive, albeit
observe that the court may for legitimate reasons, to
prevent wastage of public and private resources, can
exercise judicial discretion to conduct an intense yet
summary prima facie review while remaining conscious
that it is to assist the arbitration procedure and not usurp
jurisdiction of the Arbitral Tribunal. Undertaking a
detailed full review or a long-drawn review at the referral
stage would obstruct and cause delay undermining the
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integrity and efficacy of arbitration as a dispute
resolution mechanism. Conversely, if the court becomes
too reluctant to intervene, it may undermine effectiveness
of both the arbitration and the court. There are certain
cases where the prima facie examination may require a
deeper consideration. The court’s challenge is to find the
right amount of and the context when it would examine
the prima facie case or exercise restraint. The legal order
needs a right balance between avoiding arbitration
obstructing tactics at referral stage and protecting parties
from being forced to arbitrate when the matter is clearly
non-arbitrable.
140. Accordingly, when it appears that prima facie
review would be inconclusive, or on consideration
inadequate as it requires detailed examination, the
matter should be left for final determination by the
Arbitral Tribunal selected by the parties by consent. The
underlying rationale being not to delay or defer and to
discourage parties from using referral proceeding as a
ruse to delay and obstruct. In such cases a full review by
the courts at this stage would encroach on the
jurisdiction of the Arbitral Tribunal and violate the
legislative scheme allocating jurisdiction between the
courts and the Arbitral Tribunal. Centralisation of
litigation with the Arbitral Tribunal as the primary and
first adjudicator is beneficent as it helps in quicker and
efficient resolution of disputes.”
(emphasis supplied)
24. Following the general rule and the principle laid down in Vidya
Drolia (supra), this Court has consistently been holding that the
arbitral tribunal is the preferred first authority to determine and
decide all questions of non-arbitrability. In Pravin Electricals Pvt.
Ltd. v. Galaxy Infra and Engg. Pvt. Ltd.19, Sanjiv Prakash v. Seema
Kukreja and Ors.20, and Indian Oil Corporation Ltd. v. NCC Ltd.,
21
19 (2021) 5 SCC 671, paras 29, 30.
20 (2021) 9 SCC 732.
21 (2022) SCC OnLine SC 896.
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the parties were referred to arbitration, as the prima facie review
in each of these cases on the objection of non-arbitrability was
found to be inconclusive. Following the exception to the general
principle that the court may not refer parties to arbitration when
it is clear that the case is manifestly and ex facie non-arbitrable,
in BSNL and Anr. v. Nortel Networks India (P) Ltd.22 and
Secunderabad Cantonment Board v. B. Ramachandraiah & Sons23,
arbitration was refused as the claims of the parties were
demonstrably time-barred.
25. Eye of the Needle: The above-referred precedents crystallise
the position of law that the pre-referral jurisdiction of the courts
under Section 11(6) of the Act is very narrow and inheres two
inquiries. The primary inquiry is about the existence and the
validity of an arbitration agreement, which also includes an inquiry
as to the parties to the agreement and the applicant’s privity to the
said agreement. These are matters which require a thorough
examination by the referral court. The secondary inquiry that may
arise at the reference stage itself is with respect to the nonarbitrability of the dispute.
22 (2021) 5 SCC 738. (hereinafter ‘Nortel Networks’)
23 (2021) 5 SCC 705.
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26. As a general rule and a principle, the arbitral tribunal is the
preferred first authority to determine and decide all questions of
non-arbitrability. As an exception to the rule, and rarely as a
demurrer, the referral court may reject claims which are manifestly
and ex-facie non-arbitrable24. Explaining this position, flowing from
the principles laid down in Vidya Drolia (supra), this Court in a
subsequent decision in Nortel Networks (supra) held25:
“45.1 ...While exercising jurisdiction under Section 11 as
the judicial forum, the court may exercise the prima facie
test to screen and knockdown ex facie meritless,
frivolous, and dishonest litigation. Limited jurisdiction of
the courts would ensure expeditious and efficient
disposal at the referral stage. At the referral stage, the
Court can interfere “only” when it is “manifest” that the
claims are ex facie time-barred and dead, or there is no
subsisting dispute...”
27. The standard of scrutiny to examine the non-arbitrability of
a claim is only prima facie. Referral courts must not undertake a
full review of the contested facts; they must only be confined to a
primary first review26 and let facts speak for themselves. This also
requires the courts to examine whether the assertion on
arbitrability is bona fide or not.
27 The prima facie scrutiny of the
facts must lead to a clear conclusion that there is not even a vestige
24 Vidya Drolia supra note 7, para 154.4.
25 Nortel Networks supra note 22, para 45.1.
26 Vidya Drolia supra note 7, para 134.
27 ibid.
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of doubt that the claim is non-arbitrable.
28 On the other hand, even
if there is the slightest doubt, the rule is to refer the dispute to
arbitration29.
28. The limited scrutiny, through the eye of the needle, is
necessary and compelling. It is intertwined with the duty of the
referral court to protect the parties from being forced to arbitrate
when the matter is demonstrably non-arbitrable30. It has been
termed as a legitimate interference by courts to refuse reference in
order to prevent wastage of public and private resources31. Further,
as noted in Vidya Drolia (supra), if this duty within the limited
compass is not exercised, and the Court becomes too reluctant to
intervene, it may undermine the effectiveness of both, arbitration
and the Court32. Therefore, this Court or a High Court, as the case
may be, while exercising jurisdiction under Section 11(6) of the
Act, is not expected to act mechanically merely to deliver a
purported dispute raised by an applicant at the doors of the chosen
28 Nortel Networks supra note 22, para 47.
29 Vidya Drolia supra note 7, para 154.4.
30 ibid para 154.4.
31 ibid para 139.
32 ibid.
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arbitrator33, as explained in DLF Home Developers Limited v.
Rajapura Homes Pvt. Ltd.
29. Analysis: We will now proceed to apply these principles to
the present case and examine the arbitrability of the dispute by
undertaking a prima facie review of the basic facts.
30. SPML duly completed the stipulated work under the subject
contract, and a Completion Certificate was issued by NTPC on
27.03.2019. SPML sought the release of the final payment, and
NTPC, by its letter dated 10.04.2019, agreed to release the same.
31. A No-Demand Certificate was issued by SPML on
12.04.2019, and the final payment was released by April 2019.
There is nothing on record about any pending claims of SPML
during the subsistence of the contract or till the release of the final
payment. This is evident from the Writ Petition as well as the
Arbitration Petition under Section 11 of the Act.
32. While NTPC released the final payment, on 14.05.2019, it
justified the withholding of SPML’s Bank Guarantees on the
33 DLF Home Developers Limited v. Rajapura Homes Pvt. Ltd 2021 SCC OnLine SC 781, paras
18, 20.
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ground that there are certain disputes between the parties with
respect to other projects.
33. Objecting to the stand of NTPC by its letter dated
15.05.2019, SPML stated that linking the Bank Guarantees with
claims under other projects was unjustified. In turn, SPML raised
a claim of Rs. 72,01,53,899/- against NTPC. At the same time,
SPML also sought the appointment of an “Adjudicator” to settle
these claims.
34. It is in the above-referred context that SPML filed the Writ
Petition before the High Court on 03.07.2019. The prayer in the
Writ Petition, particularly in the context of the huge claim raised
on 15.05.2019, assumes importance. The prayer is reproduced
herein below for ready reference:
“(a) Pass an appropriate Writ, Order or Direction
quashing the e-mail dated 14.05.2019 issued by the
Respondent insofar as it pertains to the release of the
Bank Guarantees being (a)0040ILG002609, (b)
0040ILG001109, (c)0040ILG001209, (d)
0040ILG001309 and direct the Respondent to release the
aforesaid Bank Guarantees forthwith, ...”
35. There is no reference to the claim of Rs.72,01,53,899/- in
the body or the Prayer of the Writ Petition. Conspicuously, the Writ
Petition is confined to seeking a direction to return the Bank
Guarantees.
Page 21 of 27
36. Pending disposal of the Writ Petition, the High Court, by an
interim order dated 08.07.2019, directed NPTC not to invoke the
Bank Guarantees. The interim order was subject to SPML keeping
the Bank Guarantees alive. The relevant portions of the order are:
“…
2. Issue notice. The learned counsel appearing for the
respondent accepts notice.
3. Admittedly, the contract pursuant to which the bank
guarantees in question had been furnished has been
completed and there is no dispute that the petitioner’s
performance of the contract was satisfactory. The
petitioner also claims that it has received the entire
consideration for the same. The petitioner’s claims that
the release of the bank guarantees is being withheld
contrary to the terms of the contract between the parties,
in order to pressurize the petitioner in respect of certain
disputes in relation to other contracts, which are pending
adjudication before the Arbitral Tribunal.
…
6. In the meanwhile, the respondents are restrained from
invoking the bank guarantees, subject to the petitioner
keeping the same alive.”
37. On 23.07.2019, SPML sent a Notice to NTPC, intimating its
intention to invoke Arbitration under the Dispute Resolution
Clause.
38. During the pendency of the Writ Petition, the parties engaged
themselves in multiple discussions about their claims and
counter-claims. All that culminated in the Settlement Agreement
dated 27.05.2020. The Terms of the Settlement Agreement are as
follows:
Page 22 of 27
“NOW THEREFORE, in consideration of the premises and
mutual promises contained herein, the parties agree as
follows:
1. That the Agency undertakes to withdraw WP No.
7213/2019 filed in the Hon’ble High Court upon
execution of the present agreement immediately upon
receipt of original Bank Guarantees stated herein below
lying with NTPC as mentioned herein below at Para 4.
2. That the Agency has agreed not to initiate any further
proceedings in relation with the present contract
agreement and work executed by the Agency, of any
nature whatsoever. Further, the Agency has undertaken
not to raise any claim of any nature whatsoever against
the NTPC Ltd. in relation with the present contract
agreement and work executed by the Agency, be it
Arbitration proceedings, civil suit, writ petition, or any
other proceedings before any judicial or quasi-judicial
forum.
3. That the Agency has confirmed it has received entire
payments arising out of the present contract and the
same stands closed, and no further sum/money is
payable to the Agency in any manner whatsoever by
NTPC Ltd. under the subject contract.
…
5. That NTPC Ltd. has further agreed not to raise any
contempt proceedings against the Agency for not keeping
alive the BGs as directed by the Hon’ble High Court of
Delhi in pending Writ Petition.”
39. In compliance with the Settlement Agreement, NTPC
released the Bank Guarantees on 30.06.2020, which were the
subject matter of the pending Writ Petition.
40. It is noteworthy that the Bank Guarantees expired on
19.11.2019 and 16.12.2019, despite the specific direction by the
High Court to SPML to keep its Bank Guarantees alive. However,
in compliance with its express undertaking in the Settlement
Page 23 of 27
Agreement, NTPC did not file any contempt proceedings against
SPML.
41. Following the release of the Bank Guarantees as per the
Settlement Agreement, SPML withdrew the Writ Petition, as
recorded by the High Court in its Order dated 21.09.2020.
42. One month later, on 10.10.2020, SPML filed the Arbitration
Petition under Section 11(6) of the Act alleging coercion and
economic duress in the execution of the Settlement Agreement. It
was also alleged that the Settlement Agreement was repudiated on
22.07.2020 through SPML’s letter to NTPC, disputing the
Settlement Agreement.
43. In its reply to the Arbitration Petition, NTPC specifically
pointed out that SPML never raised any claims with respect to the
dues amounting to Rs. 72,01,53,899/- during the pendency of the
contract, and that the allegations of coercion and economic duress
are completely false. NTPC alleged that the Arbitration Petition
lacked bona fide.
44. A simple narration of the bare facts, as indicated above,
leads us to conclude that the allegations of coercion and economic
duress are not bona fide, and that there were no pending claims
Page 24 of 27
between the parties for submission to arbitration. The
Respondent’s claim fits in the description of an attempt to initiate
“ex facie meritless, frivolous and dishonest litigation”
34. We will
endeavor to give reasons for our conclusion.
45. The whole dispute revolves around the solitary act of the
Appellant, NTPC, in not returning the Bank Guarantees despite
the successful completion of work. This continued even after SPML
issued the No-Demand Certificate and NTPC released the final
payment. These undisputed facts led to the institution of the Writ
Petition before the Delhi High Court. There were no allegations of
coercion or economic duress compelling SPML to withdraw any
pending claims under the subject contract as a condition for the
return of the Bank Guarantees. On the contrary, the only
allegation by SPML was with respect to NTPC’s “illegal” action of
interlinking the release of the Bank Guarantees with some other
contracts. This was precisely the argument before the High Court,
and, in fact, this submission is recorded by the High Court while
issuing notice and injuncting NTPC. This fact clearly indicates that
34 Vidya Drolia supra note 7, para 147.11.
Page 25 of 27
the plea of coercion and economic duress leading to the Settlement
Agreement is an afterthought.
46. We will now examine whether the allegations of coercion and
economic duress in the execution of the Settlement Agreement are
bona fide or not. This inquiry has a direct bearing on the
arbitrability of the dispute. It was during the subsistence of the
Writ Petition and the High Court’s interim order, when SPML had
complete protection of the Court, that the parties entered into the
Settlement Agreement. This agreement was comprehensive. It inter
alia provided for (i) the release of Bank Guarantees by NTPC, (ii)
the withdrawal of SPML’s Writ Petition, (iii) restraining NTPC from
filing contempt proceedings against SPML for letting the Bank
Guarantees expire, and finally, (iv) restraining SPML from
initiating any proceedings under the subject contract, including
arbitration. The Settlement Agreement also recorded that there
were no subsisting issues pending between the parties.
47. The plea of coercion and economic duress must be seen in
the context of the execution of the Settlement Agreement not being
disputed, and its implementation leading to the release of the Bank
Guarantees on 30.06.2020 also not being disputed. Almost three
weeks after the release of the Bank Guarantees, a letter of
Page 26 of 27
repudiation was issued by SPML on 22.07.2020. This letter was
issued about two months after the Settlement Agreement was
executed and in fact during the subsistence of the Writ Petition.
After reaping the benefits of the Settlement Agreement, the Writ
Petition was withdrawn on 21.09.2020. It is thereafter that the
present application under Section 11(6) of the Act was filed. The
sequence of events leads us to conclude that the letter of
repudiation was issued only to wriggle out of the terms of the
Settlement Agreement.
48. The foregoing clarifies beyond doubt that the claims sought
to be submitted to arbitration were raised as an afterthought.
Further, SPML’s allegations of coercion and economic duress in
the execution of the Settlement Agreement lack bona fide. They are
liable to be knocked down as ex facie frivolous and untenable.
49. In view of the above-referred facts, which speak for
themselves, we are of the opinion that this is a case where the High
Court should have exercised the prima facie test to screen and
strike down the ex-facie meritless and dishonest litigation. These
are the kinds of cases where the High Court should exercise the
restricted and limited review to check and protect parties from
being forced to arbitrate.
Page 27 of 27
50. Accordingly, we have no hesitation in holding that the High
Court has committed an error in allowing the application under
Section 11(6) of the Act. High Court ought to have examined the
issue of the final settlement of disputes in the context of the
principles laid down in Vidya Drolia (supra).
51. For the reasons stated above, the decision of the High Court
of Delhi in Arbitration Petition No. 477 of 2020, dated 08.04.2021,
is set aside, and Civil Appeal No. 4778 of 2022 stands allowed.
52. The parties shall bear their own costs.
....................................CJI.
[Dr Dhananjaya Y Chandrachud]
........................................J.
[Pamidighantam Sri Narasimha]
New Delhi;
April 10, 2023
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