Calcutta High Court M/S. National Project Construction ... vs Military Engineer Services (Mes) on 29 July, 2025 OCD 13 ORDER SHEET APCOM/559/2025 COMMERCIAL DIVISION ORIGINAL SIDE M/S. NATIONAL PROJECT CONSTRUCTION (NPCCL) VS MILITARY ENGINEER SERVICES (MES) BEFORE: The Hon'ble JUSTICE SHAMPA SARKAR Date: 29thJuly, 2025. Appearance: Mr. DebajyotiBasu,Sr.Adv. Mr. DiptomoyTalukder, Adv. Mr. Dibyendu Ghosh, Adv. .... for the petitioner Mr. BishwambherJha, Adv. Mr. H.K. Jha, Adv. Ms. Munmun Mishra, Adv. ...for the respondent The Court: This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act). The respondent floated a notice inviting tender for the job of Building and Structure works, Site Clearance, area development, earth work and also excavation, internal electrification etc. The petitioner participated in the said tender process. The petitioner prays for appointment of an arbitrator under Clause 70 of the General Conditions of Contract(in short GCC). The clause provides that 2 all disputes between the parties to the Contract (other than those for which the decision of the C.W.E. or any other person is by the Contract expressed to be final and binding), shall, after written notice by either party to the Contract, to the other of them, be referred to the sole arbitration of a [Serving Officer having degree in Engineering of equivalent or having passed final/direct final Examination of subDivision II of Institution of Surveyor (India) recognized by the Govt. Of India]. The clause provides that unless both parties agree in writing to such reference, the reference shall not take place until after completion or alleged completion of the Works or termination or determination of the Contract under Condition Nos. 55, 56 and 57. It also provides that in case of abandonment of the Works or cancellation of the Contract under Condition Nos. 52, 53 and 54, such reference shall not take place until alternative arrangements have been finalized by the Government to get the Works completed by or through any other Contractor or Contractors or Agency or Agencies. Mr. Basu, learned senior advocate submits that the contract has been terminated. Thus this is not a case which will be covered by the exception to Clause 70. It is further contended that Courts situated at the place from which the tenderwas accepted or where the work was to be executed, shall have jurisdiction. Clause 72 of the GCC is referred to. It is submitted that the tender was accepted at Kolkata and Letter of Award (LOA) was issued from Kolkata. Reliance has been placed on Clause 9 of the NIT and Appendix A, in 3 support of the contention that the office of the tender issuing and accepting authority was in Gurusaday Road, Kolkata. It is next contended by the petitioner that disputes and differences arose between the parties with regard to the execution of the work and lastly when the contract was terminated. The respondent did not accept foreclosure as prayed for by the petitioner. Reference was made to the letter dated July 24, 2024 in support of the contention that several letters had been exchanged between the parties between November 15, 2023 and July 19, 2024 on the disputes and differences. The petitioner participated in the tender process and was selected. The LOA was issued on November 16, 2023. A contract was executed between the parties which contemplated diverse terms and conditions and also included Clause 70 of the General Conditions of Contract (GCC) which was the arbitration agreement. Clause 28 of the Special Conditions of Contract (SCC) provided for resolution of the dispute by the Dispute Resolution Board. Both the GCC and SCC were made applicable to the concerned agreement between the parties. The allegations of the petitioner are that the work could not be started on time due to the breach committed by the respondent. The