M/S. DURO FELGUERA, S. A. versus M/S. GANGAVARAM PORT LIMITED

Citation: [2017] 10 S.C.R. 285 · Decided: 10-10-2017 · Supreme Court of India · Bench: KURIAN JOSEPH · Disposal: Disposed off

Cited by 26 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

[2017] 10 S.C.R. 285 
MIS. DURO FELGUERA, S. A. 
v. 
MIS. GANGAVARAM PORT LIMITED 
(Arbitration Petition No. 30 of2016) 
OCTOBER 10, 2017 
[KURIAN JOSEPH AND R. BANUMATHI, JJ.] 
A 
B 
c 
Arbitration and Conciliation (Amendment) Act, 2015: ss. 11 (6) 
and 11 (6A) - GPL awarded tender work to applicant-Foreign 
company and FGJ-its lndian subsidiary - Later original contract 
split into five different and separate packages with different job 
description - One contract with the applicant and four with FGl -
Each contract had separate arbitration clause - Dispute between 
parties - Arbitration clause invoked - FGJ issued four arbitration 
notices, applicant issued one arbitration notice whereas GPL issued 
comprehensive arbitration notice consisting single arbitral tribunal D 
oi1 basis of MoU - Whether there has to be a single arbitral tribunal 
for International Commercial Arbitration or Multiple Arbitral 
Tribunals - Held: Since the dispute between the parties arose in 
2016, the instant issue is governed by the amended provision of 
s. 11 (6A) as per which the power of the court is con.fined only to 
examine the existence of the arbitration agreement - On facts, there 
are five separate Letters of Award; five separate contracts awarded 
to applicant and FGJ; separate suliject matters; separate and distinct 
work; each containing separate arbitration clause signed by the 
respective parties to the contract - Original Package split into five 
different Packages, each having different works prima facie 
indicates the intention of the parties to split-up Original Package 
into jive different packages - Thus, when there are five separate 
contracts, one with foreign company and four with Indian subsidiary, 
each having independei1t existence with separate arbitration clauses, 
and Corporate Guarantee also contains an arbitration clause, there 
cannot be a single arbitral tribunal for "International Commercial 
Arbitration". 
Disposing of the matters, the Court 
HELD: Per Banumathi, J.: 
E 
F 
G 
1.1 As per the amended provision of sub-section (6A) of H 
285 
286 
A 
B 
c 
SUPREME COURT REPORTS 
[2017] 10 S.C.R. 
Section 11 of the Arbitration and Conciliation (Amendment) Act, 
2015(Act 3 of 2016), the power of the court is confined only to 
examine the existence of the arbitration agreement. It further 
clarifies that the decision of appointment of an arbitrator will be 
made by the Supreme Court or the High Court (instead of Chief 
Justice) and under Section 11(7), no appeal shall lie against such 
an appointment. The language in Section 11(6) of the Act "the 
Chief Justice or any person or institution designated by him" has 
been substituted by "Supreme Court or as the case may be the 
High Court or any person or institution designated b.v such Court". 
As per sub-section (6A) of Section 11, the power of the Court 
has now been restricted only to see whether there exists an 
arbitration agreement. The amended provision in sub-section (7) 
of Section ll provides that the order passed under Section 11(6) 
shall not be appealable and thus, finality is attached to the order 
passed under this Section. [Paras 13, 17] [299-H; 300-A-B; 301-
D D-EJ 
E 
F 
G 
l.2 There is no dispute between the parties that the issue 
at hand is governed by the amended pro,ision of sub-section 
(6A) of Section 11. Even though Letters of .\ward are dated 
17.03.2012 and five separate contracts were enterl:'d into between 
the parties on 10.05.2012, the dispute arose between the parties 
in 2016, GPL invoked the Bank Guarantee on 07.01.2016 and 
the applicant and its Indian Subsidiary-FGI issued notice of 
dissatisfaction on 04.02.2016 and 07.02.2016 respectively to GPL 
The applicant issued arbitration notice on 05.04.2016 for contract 
relating to Package No. 4 and FGI issued four arbitration notices 
dated 07.04.2016 for contracts relating to Packages No. 6 to 9. 
GPL also issued an arbitration notice on 13.04.2016. Since the 
dispute between the parties arose in 2016, the amended provision 
of sub-section (6A) of Section 11 would govern the issue, as per 
which the power of the Court is confined only to examine the 
existence of the arbitration agreement. ll'ara 191 [306-E-Gl 
l.3 Original Package No.4 Tender Document for GPL 
Expansion-2011 consisted of "Bulk Materiul Handling Systems 
including Engineering, Design, Procurement of Materials, 
Manufacturing, Supply erection, testing and commissioning of bulk 
material handling systems including

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