JUDGMENT Deepak Gupta, J. 1. The plaintiff Satluj Jal Vidyut Nigam Limited is a joint venture of the Government of India and Government of Himachal Pradesh formerly known as Nathpa Jhakri Power Corporation (hereinafter referred to as the plaintiff Corporation). The plaintiff Corporation was established for construction and setting up of a 1500 Mega Watt (MW) Hydro Electric Power Project on river Satluj known as Nathpa Jhakri Project. The plaintiff in turn entered into a contracts with various other parties including the defendant for carrying out some portions of the work relating to the construction and erection of the Project. 2. The present dispute relates to Contract No. 3 of 1993 entered into between the parties on 24.6.1993 whereby the plaintiff had entrusted the construction of civil work for a Head Race Tunnel from Station 16042 m to 27295 m, including surge shaft to the defendant. Differences arose between the parties with regard to the method to be employed for the excavation work keeping in view the fact that the geological nature of the rock face encountered during the course of excavation was found to be different from that envisaged at the time of execution of contract. According to the Contractor it had to spend much more money on account of the change in geological situation and, therefore, laid a claim for enhanced payment. Initially the claim was made to the Engineer-in-charge for written instructions and decision as per the modified Clause 67 of the general conditions of contract. No reply was received and thereafter the Contractor filed a written appeal before the Chairman-cum-Managing Director of the plaintiff-Corporation. This authority also took no decision and as such the contractor referred the matter to the Dispute Review Board (hereinafter referred to as the DRB). 3. The DRB on receipt of the reference issued notices to the plaintiff-Corporation and reply to the claim was filed. The DRB heard both the parties and passed an award for Rs. 31,82,293/- in favour of the Contractor on 3.5.2003. This decision of the DRB was a majority decision. The plaintiff paid the amount as per the order of the DRB but has challenged the same by filing the present suit which was filed on 15.12.2004. 4. The DRB heard both the parties and passed an award for Rs. 31,82,293/- in favour of the Contractor on 3.5.2003. This decision of the DRB was a majority decision. The plaintiff paid the amount as per the order of the DRB but has challenged the same by filing the present suit which was filed on 15.12.2004. 4. The defendant has contested the suit and supported the decision of the DRB and one of the preliminary objection raised is that the order of the DRB is an arbitral award which can only be challenged according to the provisions of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Arbitration Act) and, therefore, the suit is not maintainable. An application being OMP No. 113 of 2005 was also filed alongwith the written statement with the prayer that since the Arbitral Tribunal (DRB) has passed the award in terms of the 1996 Arbitration Act as such the present suit is barred under the provisions of Sections 5, 34(1), 35 and 36 of the said Act. Reply to this application has been filed by the plaintiff. At the time of hearing of this application I was informed by the learned Counsel of the parties that there are number of other suits wherein the same point is involved and, therefore, I permitted the Counsel who are appearing in other matters to address me on the limited question as to whether the order of the DRB amounts to an Arbitral award or not? 5. An interesting question of law which arises for decision in the present OMP is whether the order/adjudication of the Dispute Review Board for individual claims up to Rs. 50 million (Rs. 5 crores) amounts to an arbitral award within the meaning of Arbitration Act and as such whether such decision/adjudication can only be challenged in proceedings under the Arbitration Act? 6. It would be appropriate to give a brief factual background to appreciate the rival contentions of the parties. The plaintiff as observed above was engaged in the construction of 1500 MW Hydro Electric Power Project. For this purpose it divided the various civil work into separate works and global tenders were invited. 6. It would be appropriate to give a brief factual background to appreciate the rival contentions of the parties. The plaintiff as observed above was engaged in the construction of 1500 MW Hydro Electric Power Project. For this purpose it divided the various civil work into separate works and global tenders were invited. On 24.6.1993 Contract No. 3 of 93 was entered into between the parties for work of contract Lot 2.2 involving the construction of civil works for head race tunnel from station 16042 M to 27295 M including a surge shaft. 7. It is the case of the plaintiff which has been admitted by the defendant that the project was a World Bank aided project and the World Bank insisted that there should be a clause in the contract entered into between the parties where there should be procedure prescribed for some form of pre-arbitration dispute resolution such as mediation, adjudication etc. There is no dispute between the parties that modified Clause 67 was incorporated at the instance of the World Bank which was virtually financing the project. Modified Clause-67 and the Annexure-A thereto runs into almost 15 pages. However, the salient features of this clause which are relevant for the decision of the present case are set-out hereunder: 8. In case the Contractor feels that he is entitled to higher payment since the work he is being asked to do is outside the requirement of the work envisaged by the contract he shall promptly ask the Engineer-in-charge (EIC) to give his written instructions or decision. The EIC is required to give his decision within 30 days of such request. Upon receipt of such decision the contractor is to proceed without delay to comply with such instructions or decision. 9. In case the EIC fails to give his instructions or decision within the stipulated period or if the Contractor is not satisfied with the same the Contractor can file written appeal to the CMD of the plaintiff Corporation. The CMD has to consider the written appeal and take a decision within 30 days of the receipt of the appeal. In case the CMD does not take a decision or his decision is not acceptable to the Contractor the Contractor can approach the DRB. The CMD has to consider the written appeal and take a decision within 30 days of the receipt of the appeal. In case the CMD does not take a decision or his decision is not acceptable to the Contractor the Contractor can approach the DRB. The necessary portion of the clause which is the bone of contention between the parties reads as follow: If the contractor is dis-satisfied with this decision, the Contractor, within a period of fifteen days from the receipt of the decision, shall indicate to the CMD, NJPC his intention to refer the matter to the Disputes Review Board (DRB) and within a period of another fifteen days shall formally appeal to the Disputes Review Board. The constitution of the Disputes Review Board and the procedure to be adopted by it for resolving the disputes is elaborated in the Annex-A, provided, however, all such disputes which may arise prior to the Constitution of the Board, shall be taken up for consideration at its first meeting convened not later than 30 days upon its Constitution. As specified under Para 1 of Annex-A, the disputes involving the individual claims upto Rs. 50.00 (fifty) million shall be binding on the NJPC and the Contractor. In the case of the dispute involving individual claim beyond Rs. 50.00 (fifty) million, if in spite of the recommendations/decision of the Disputes Review Board, the Dispute remains unresolved, either party, within 15 days of the receipt of the aforesaid recommendations/decision of the Board, may appeal the decision back to the Board for review. However, if even after this review of its recommendations/decision by the Dispute Review Board, the two parties still fail to resolve the dispute, either party may resort to arbitration. In that case, within a period of 30 days of the receipt of the Disputes Review Board's final recommendations/decision, the party desiring to resort to arbitration shall indicate its intention to refer the dispute to Arbitration, failing which, the said final recommendations/decision of the Disputes Review Board shall be conclusive and binding. 10. There is also a clause which stipulates that in case of arbitrations the parties would be governed by the Indian Arbitration Act, 1940 and the statutory amendments thereof. Annexure-A which relates to the structure of the DRB and the procedure to be followed by it give an indication of the intention of the parties while entering into this agreement. 10. There is also a clause which stipulates that in case of arbitrations the parties would be governed by the Indian Arbitration Act, 1940 and the statutory amendments thereof. Annexure-A which relates to the structure of the DRB and the procedure to be followed by it give an indication of the intention of the parties while entering into this agreement. This will help the Court to determine whether in cases where the value of the claim does not exceed Rs. 50 million (Rs. 5 crores) the decision/ recommendations of the DRB is an arbitral award or merely a recommendation. 11. It is clear from a reading of a modified Clause 67 as well as the Annexure thereto that a 3-tier or 4-tier dispute redressal mechanism system was provided. A contractor is first supposed to approach the EIC; in case he is unsatisfied he is to approach the CMD in appeal; in case he is still unsatisfied he can approach the DRB. According to the applicant-defendant the decision of the DRB in claims upto the value of Rs. 50 million are final and in the nature of an arbitral award under the Arbitration Act. 12. Annexure-A contains the following important clause which is reproduced below: The recommendations/decision of the Disputes Review Board in respect of the disputes involving individual claims upto Rs. 50.00 (fifty) million shall be binding on the NJPC and the Contractor. 13. The DRB consists of three members; one member to be selected by the NJPC and approved by the Contractor; one member to be selected by the Contractor and approved by the NJPC; and the third member is to be appointed by the two members themselves. 14. Another important clause of Annexure-A of modified Clause 67 reads as follows: It is imperative that Board members show no partiality to either the Contractor or the NJPC, or have any conflict of interest. The criteria and limitations for membership shall be as follows: (a) No member shall have an ownership interest in any party to the Contract, or a financial interest in the Contract, except for payment for services on the Disputes Review Board. (b) Except of fee-based consulting services on other projects, no member shall have been employed by either party within a period of two years prior to award of the Contract. (b) Except of fee-based consulting services on other projects, no member shall have been employed by either party within a period of two years prior to award of the Contract. (c) No member shall have had substantial prior involvement in the Project, of a nature which could compromise his/her ability to impartially resolve disputes. (d) No member shall be employed by any party to the contract during the life of the Contract, except as a Disputes Review Board member. (e) During the life of the Contract, no discussion or agreement shall be made between any Disputes Review Board member and any party to the contract for employment after the Contract is completed. Before their appointments are made, the first two prospective members shall submit complete disclosure statements for the approval of both the NJPC and contractor. Each statement shall include a resume of experience and a declaration describing all past, present and anticipated or planned future relationships to this Project and with all parties involved in this Contract. The third Board member shall supply such a statement to the first two Board members before his appointment is finalized. 15. Para 6 of the Annexure lays down the procedure for the conduct of hearings by the DRB. The salient features, of this para are that normally the DRB shall decide the dispute referred to it within one month and in case of complex matters may take more than one month. The DRB shall give opportunity to both the Contractor and the NJPC to be heard and to lead evidence. The DRB can request the parties to file written arguments and documents which shall be supplied to the opposite party to facilitate the DRB at the time of hearing. The representatives of the both parties would be permitted to be present at all hearings. The DRB has the power to ask questions and seek clarifications. After hearing the DRB is to meet in private to formulate its recommendations/decision supported by reasoning. The final recommendations/decision would be submitted as a written report to both the parties. 16. A tripartite agreement was also entered into between the NJPC, Contractor and the Disputes Review Board with regard to the procedure, constitution and remuneration etc. of the Members of the DRB. 17. M/s. E.R. Kumar and Sameer Parekh, learned Counsel for the applicant-Contractor have submitted that the DRB has all the attributes of an Arbitral Tribunal. 16. A tripartite agreement was also entered into between the NJPC, Contractor and the Disputes Review Board with regard to the procedure, constitution and remuneration etc. of the Members of the DRB. 17. M/s. E.R. Kumar and Sameer Parekh, learned Counsel for the applicant-Contractor have submitted that the DRB has all the attributes of an Arbitral Tribunal. According to them as far as the disputes upto the value of Rs. 50 million are concerned the decision of the DRB is in the nature of an arbitral award. The reference of a dispute has to be made to the DRB. The DRB is to consist of three impartial members who are supposed to disclose any conflict of interest before their appointment. The nominee of each party is appointed as Member of the DRB only when the other party accepts the proposal. The DRB has the right to examine and call for evidence and to follow the principles of natural justice. The DRB has to decide the dispute after hearing the parties and is required to give a reasoned decision. Therefore, according to them the order of the DRB in cases involving individual claims not exceeding Rs. 50 million is a final decision in the nature of an award and only in cases involving individual claims above this value is it in the nature of recommendation. 18. On the other hand Mr. G.C. Gupta, learned senior Counsel on behalf of the plaintiff has contended that the tripartite agreement entered into between the plaintiff, the defendant and the DRB shows that the DRB is a contracting party and, therefore, cannot be termed to be an arbitral tribunal. It is also contended that the agreement to refer the disputes to the DRB is not a submission to arbitration in terms of Section 7 of the Arbitration Act. It is also contended that modified Clause 67 only gives a right to the Contractor and not to the NJPC and therefore an agreement by which only the claims of one side can be referred for decision cannot be termed as an arbitration agreement. 19. Mr. Sanjay Karol, learned senior Counsel appearing for the plaintiff in other Civil Suits involving the same point contended that the recommendations of the DRB are in the nature of recommendation of an expert body not binding upon the parties and are in the nature of a pre-arbitration stage adjucation. 19. Mr. Sanjay Karol, learned senior Counsel appearing for the plaintiff in other Civil Suits involving the same point contended that the recommendations of the DRB are in the nature of recommendation of an expert body not binding upon the parties and are in the nature of a pre-arbitration stage adjucation. According to him the decision/recommendation of the DRB cannot be executed as a decree under Section 36 of the Arbitration Act. He submits that in case Clause 67 is read as a whole it is clear that the intention of the parties was that the decision of the DRB even in relation to individual claims valuing upto Rs. 50 million only would only be a recommendation and not an arbitral award. 20. The parties have cited various judgments. In State of U.P. v. Tipper Chand (1980) 2 SCC 341, the Clause which was interpreted was as follows: Except where otherwise specified in the contract the decision of the Superintending Engineer for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, design, drawing and instructions hereinbefore mentioned. The decision of such Engineer as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter or things whatsoever, in any way arising out of or relating to the contract, designs, drawing specifications, estimates, instructions, orders, or these conditions, or otherwise concerning the works, or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment of the contract by the contractor, shall also be final, conclusive and binding on the contractor. Interpreting this clause the Apex Court held: 4. After perusing the contents of the said clause and hearing learned Counsel for the parties we find ourselves in complete agreement with the view taken by the High Court. Admittedly the clause does not contain any express arbitration agreement. Nor can such an agreement be spelled out from its terms by implication, there being no mention in it of any dispute, much less of a reference thereof. On the other hand, the purpose of the clause clearly appears to be to vest the Superintending Engineer with supervision of the execution of the work and administrative control over it from time to time. 21. On the other hand, the purpose of the clause clearly appears to be to vest the Superintending Engineer with supervision of the execution of the work and administrative control over it from time to time. 21. In Smt. Rukmanibai Gupta v. Collector, Jabalpur and Ors. (1980) 4 SCC 556, the clause which was interpreted was in the following terms: 15. Whenever any doubt, difference or dispute shall hereafter arise touching the construction of these presents or anything herein contained or any matter or things connected with the said lands or the working or non-working thereof or the amount or payment of any rent or royalty reserved or made payable hereunder in the matter in difference shall be decided by the lessor whose decision shall be final. The Apex Court considered this clause and held as follows: 6. Does Clause 15 spell out an arbitration agreement? Section 2(a) of the Arbitration Act, 1940, defines 'arbitration agreement' to mean a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. Clause 15 provides that any doubt, differences or dispute, arising after the execution of the lease deed touching the construction of the terms of the lease deed or anything therein contained or any matter or things connected with the said lands or the working or non-working thereof or the amount or payment of any rent or royalty reserved or made payable thereunder, the matter in difference shall be decided by the lessor whose decision shall be final. The reference has to be made to the lessor and the lessor is the Governor. His decision is declared final by the terms of the contract. His decision has to be in respect of a dispute or difference that may arise either touching the construction of the terms of the lease deed or disputes or differences arising out of the working or non-working of the lease or any dispute about the payment of rent or royalty payable under the lease deed. Therefore, Clause 15 read as a whole provides for referring future disputes to the arbitration of the Governor. Arbitration agreement is not required to be in any particular form. Therefore, Clause 15 read as a whole provides for referring future disputes to the arbitration of the Governor. Arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if disputes arise between them in respect of the subject-matter of contract such dispute shall be referred to arbitration, then such an arrangement would spell out an arbitration agreement. A passage from RUSSELL ON ARBITRATION, 19th Edn., p.59, may be referred to with advantage: If it appears from the terms of the agreement by which a matter is submitted to a person's decision that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry and hear the respective cases of the parties and decide upon evidence laid before him, then the case is one of an arbitration. In the clause under discussion there is a provision for referring the disputes to the lessor and the decision of the lessor is made final. On its true construction it spells out an arbitration agreement. 22. In State of Orissa and Anr. v. Damodar Das (1996) 2 SCC 216, the clause was worded similarly to the clause in Tipper Chand's case (supra) and the Apex Court distinguished the judgment in Rukrnanibai Gupta's case (supra) and held that the clause did not amount to an arbitration agreement. Similar view, was taken by the Apex Court in Nav Bharat Construction Co. v. State of Rajasthan and Ors. (1996) 7 SCC 89. 23. On behalf of the plaintiff-non-applicant great reliance has been placed on the judgment of the Apex Court in K.K. Modi v. K.N. Modi and Ors. (1998) 3 SCC 573. Since this case appears to be the sheet anchor of the submissions of the plaintiff it would be necessary to give the background of the case. Differences and disputes arose between the two branches of the Modi family. To resolve these disputes negotiations took place with the help of financial institutions and ultimately a memorandum of understanding (MOU) was entered into between both the groups. The settlement was arrived at as per the terms of the MOU under which the shares and assets of various Companies were required to be valued in the manner specified in the MOU. Valuation was to be done by M/s. S. B. Billimoria and Co. The settlement was arrived at as per the terms of the MOU under which the shares and assets of various Companies were required to be valued in the manner specified in the MOU. Valuation was to be done by M/s. S. B. Billimoria and Co. and division of the Companies was to be made in accordance with the scheme to be prepared by Bansi S. Mehta and Co. Clause-9 of the MOU provided that if any disputes or clarifications relating to the implementation arose then the same were to be referred to the Chairman of the IFCI. Clause 9 reads as follows: Implementation will be done in consultation with the financial institutions. For all disputes, clarifications etc. in respect of implementation of this agreement, the same shall be referred to the Chairman, IFCI or his nominees whose decision will be final and binding on both the groups. 24. The reports were submitted by M/s. S.B. Billimoria and Company as well as M/s. Bansi S. Mehta and Company. Both groups of the Modi family were not satisfied with these reports and represented to the Chairman and Managing Director of the IFCI in terms of Clause 9. The Chairman and Managing Director in turn formed a Committee of experts to assist him in the matter and a decision was taken by him in consultation with both the groups. The Chairman of the IFCI submitted his detailed decision/ report. This decision was not filed in the Court as an award nor did any party apply for making it rule of the Court. Thereafter, one of the groups challenged the validity of the said decision and the question arose whether the decision of the Chairman of the IFCI in terms of Clause 9 quoted hereinabove amounted to an arbitral award or not. 25. The Apex Court referred to the treatise of MUSTILL AND BOYD in their book on COMMERCIAL ARBITRATION, and held that the following attributes must be present for an agreement to be an arbitration agreement: 17. 25. The Apex Court referred to the treatise of MUSTILL AND BOYD in their book on COMMERCIAL ARBITRATION, and held that the following attributes must be present for an agreement to be an arbitration agreement: 17. Among the attributes which must be present for an agreement to be considered as an arbitration agreement are: (1) The arbitration agreement must contemplate that the decision of the tribunal will be binding on the parties to the agreement, (2) That the jurisdiction of the tribunal to decide the rights of parties must derive either from the consent of the parties or from an order of the Court or from a statute, the terms of which make it clear that the process is to be an arbitration, (3) the agreement must contemplate that substantive rights of parties will be determined by the agreed tribunal, (4) that the tribunal will determine the rights of the parties in an impartial and judicial manner with the tribunal owing an equal obligation of fairness towards both sides, (5) that the agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law and lastly, (6) the agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal. 18. The other factors which are relevant include, whether the agreement contemplates that the tribunal will receive evidence from both sides and hear their contentions or at least give the parties an opportunity to put them forward; whether the wording of the agreement is consistent or inconsistent with the view that the process was intended to be an arbitration, and whether the agreement requires the tribunals to decide, the dispute according to law." Thereafter, the Apex Court referred to RUSSELL ON ARBITRATION and held that though there were no conclusive tests by following a set of guidelines one can decide whether the agreement to refer an issue is a reference to an expert or whether the parties have agreed to refer the dispute for decision through arbitration. The Apex Court in para 21 held as follows: 21. The Apex Court in para 21 held as follows: 21. Therefore, our Courts have laid emphasis on (1) existence of disputes as against intention to avoid future disputes; (2) the tribunal or forum so chosen is intended to act judicially after taking into account relevant evidence before it and the submissions made by the parties before it; and (3) the decision is intended to bind the parties. Nomenclature used "by the parties may not be conclusive. One must examine the true intent and purport of the agreement. There are, of course, the statutory requirements of a written agreement, existing or future disputes and an intention to refer them to arbitration. (Vide Section 2 Arbitration Act, 1940 and Section 7 Arbitration and Conciliation Act, 1996.) 26. Thereafter, reference was made to a number of cases and the Court held that the decision of the Chairman of the IFCI in terms of Clause 9 was not an arbitral award and the proceedings before him were not in the nature of arbitral proceedings. In Bharat Bhushan Baiisal v. U.P. Small Industries Corporation Ltd., Kanpur (1999) 2 SCC 166, the Apex Court following the decision in Modi's case (supra) and keeping in view the fact that the clause in the said case was much nearer to the clause in Tipper Chand's case, held that there was no arbitration agreement between the parties. 27. In Bihar Slate Mineral Development Corporation and Anr. v. Encon Builders (I) (P) Ltd. (2003) 7 SCC 418, again the question arose as to what are the essentials of an arbitration agreement. In this case the Apex Court held as follows: 13. The essential elements of an arbitration agreement are as follows: (1) There must be a present or a future difference in connection with some contemplated affair. (2) There must be the intention of the parties to settle such difference by a private tribunal. (3) The parties must agree in writing to be bound by the decision of such tribunal. (4) The parties must be ad idem. 14. There is no dispute with regard to the proposition that for the purpose of construing an arbitration agreement, the term "arbitration" is not required to be specifically mentioned therein. The High Court, however, proceeded on the basis that having regard to the facts and circumstances of this case, the arbitration agreement could have been given effect to. 14. There is no dispute with regard to the proposition that for the purpose of construing an arbitration agreement, the term "arbitration" is not required to be specifically mentioned therein. The High Court, however, proceeded on the basis that having regard to the facts and circumstances of this case, the arbitration agreement could have been given effect to. We may, therefore, proceed on the basis that Clause 60 of the contract constitutes an arbitration agreement. 28. The question as to what constitutes an arbitration agreement again came up for consideration before the Apex Court in Mallikarjun v. Gulbarga University (2004) 1 SCC 372, in which it held thus: 5. Clause 30 of the agreement, which reads as under: The decision of the Superintending Engineer of Gulbarga Circle for the time being shall be final, conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or material used on the work, or as to any other question, claim, right, matter, or thing whatsoever, in any way arising out of, or relating to the contract designs, drawings, specifications, estimates, instructions, orders or those conditions, or otherwise concerning the works or the execution or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof in case of dispute arising between the contractor and Gulbarga University. 6. A plain reading of the aforementioned clause would show that in case of dispute between the contractor and Gulbarga University, the decision of the Superintending Engineer of Gulbarga Circle, Gurbarga, shall be final and binding on all parties to the contract, such dispute may embrace within its fold all questions relating to the matters specified therein as also any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract. Such dispute may also relate to designs, drawings, specifications, estimates, instructions, orders or those conditions or otherwise concerning the works or the execution or failure to execute the same. Such disputes may be referred to for decision of the Superintending Engineer; whether arising during the progress of the work or after the completion thereof. 7. There cannot, thus, be any doubt whatsoever that Clause 30 aforementioned fulfils all the criteria of a valid arbitration agreement. Such disputes may be referred to for decision of the Superintending Engineer; whether arising during the progress of the work or after the completion thereof. 7. There cannot, thus, be any doubt whatsoever that Clause 30 aforementioned fulfils all the criteria of a valid arbitration agreement. It is further not in dispute that the Superintending Engineer, Gulbarga Circle, Gulbarga is an independent person. 29. Thereafter, the Court referred to the decision in Bihar State Mineral Development Corporation's case and Bharat Bhushan Bansal's case (supra) and held as under: 15. A bare comparison of Clause 30 of the contract agreement involved in the present matter and clauses 23 and 24 involved in Bharat Bhushan Bansal case would show that they are not identical. Whereas Clause 30 of the agreement in question provides for resolution of the dispute arising out of the contract by persons named therein; in terms of Clause 24, there was no question of decision by a named person in the dispute raised by the parties to the agreement. The matters which are specified under clauses 23 and 24 in Bharat Bhushan Bansal case were necessarily not required to arise out of the contract, but merely claims arising during performance of the contract. Clause 30 of the agreement in the present case did provide for resolution of the dispute arising out of the contract by the Superintending Engineer, Gulbarga Circle, Gulbarga. For that reason, the case relied upon by the learned Counsel for the respondent is distinguishable. 16. Once Clause 30 is constituted to be a valid arbitration agreement, it would necessarily follow that the decision of the arbitrator named therein would be rendered only upon allowing the parties to adduce evidence in support of their respective claims and counterclaims as also upon hearing the parties to the dispute. For the purpose of constituting the valid arbitration agreement, it is not necessary that the conditions as regards adduction of evidence by the parties or giving an opportunity of hearing to them must specifically be mentioned therein. Such conditions, it is trite, are implicit in the decision-making process in the arbitration proceedings. Compliance with the principles of natural justice inheres in an arbitration process. They, irrespective of the fact as to whether recorded specifically in the arbitration agreement or not are required to be followed. Such conditions, it is trite, are implicit in the decision-making process in the arbitration proceedings. Compliance with the principles of natural justice inheres in an arbitration process. They, irrespective of the fact as to whether recorded specifically in the arbitration agreement or not are required to be followed. Once the principles of natural justice are not complied with, the award made by the arbitrator would be rendered invalid. We, therefore, are of the opinion that the arbitration clause does not necessitate spelling out of a duty on the part of the arbitrator to hear both parties before deciding the question before him. The expression "decision" subsumes adjudication of the dispute. Here in the instant case, it will bear repetition to state, that the disputes between the parties arose out of a contract and in relation to matters specified therein and, thus, were required to be decided and such decisions are not only final and binding on the parties, but they are conclusive which clearly spells out the finality of such decisions as also their binding nature. 17. A clause which is inserted in a contract agreement for the purpose of prevention of dispute will not be an arbitration agreement. Such a provision has been made in the agreement itself by conferring power upon the Engineer-in-Charge to take a decision thereupon in relation to the matters envisaged under clauses 31 and 32 of the said agreement. Clauses 31 and 32 of the said agreement provide for a decision of the Engineer-in-Charge in relation to the matters specified therein. The jurisdiction of the Engineer-in-Charge in relation to such matters are limited and they cannot be equated with an arbitration agreement. Despite such clauses meant for prevention of dispute arising out of a contract, significantly, Clause 30 has been inserted in the contract agreement by the parties. 18. The very fact that Clause 30 has been inserted by the parties despite the clauses for prevention of dispute is itself a pointer to the fact that the parties to the contract were ad idem that the dispute find differences arising out of or under the contract should be determined by a domestic tribunal chosen by them. 19. The said clause being a part of the} contract agreement, it is beyond any cavil that the parties were ud idem in relation thereto. 30. 19. The said clause being a part of the} contract agreement, it is beyond any cavil that the parties were ud idem in relation thereto. 30. I now proceed to consider whether modified Clause 67 of the General Conditions of Contract constitutes an arbitration agreement in the light of the various tests laid down by the Apex Court in the aforesaid judgments. 31. There can be no doubt with regard to the fact that the DRB was created with the consent of the parties and there is no dispute that modified Clause 67 forms part of the agreement. I have been informed at the Bar that in some other matters the validity of this Clause is under challenge but in the present matter the validity of this Clause is not under challenge. 32. Modified Clause 67 provides that the DRB will determine the substantive right of the parties. This is apparent from the fact that when the Contractor raises a demand he has to first inform the Engineer-in-Charge EIC. In case the EIC does not take any decision or the contractor is dis-satisfied with his decision he can file an appeal within 30 days to the CMD. The CMD is to consider the written appeal and if the contractor does not receive the decision within 30 days or is dis-satisfied from the same he can then refer the matter to the DRB. In terms of Clause 67 the parties have agreed that the decision of the DRB in disputes involving individual claims up to Rs. 50 million will be binding upon them. In case a dispute involves individual claim of more than Rs. 50 million then the aggrieved party can approach the DRB for review and thereafter if it is still not satisfied can resort to arbitration. The intention of the parties is clear that the decision of the DRB is to be binding in cases involving individual claims up to Rs. 50 million. 33. It is amply clear that in view of the complex nature of the Project being funded by the World Bank, the financing bank felt that instead of the work coming to a halt because of disputes between the contractor and the NJPC (now SJVN) an in-house procedure should be prescribed to avoid litigation and to provide for redressal of disputes at the level of the parties themselves. Therefore, a claim has first to be made to EIC and an appeal lies to the CMD. Thereafter, recourse could be taken by referring the matter for decision to the DRB. The work would continue regardless of the pending claims. 34. Modified Clause 67 has two distinct parts. The first part relating to disputes including individual claims up to Rs. 50 million and the second part relates to disputes involving individual claims above Rs. 50 million. In my opinion, the intention of the parties was clear that in so far as the disputes up to Rs. 50 million are concerned the decision of the DRB was final and binding. It was only a recommendation as far as claims beyond Rs. 50 million are concerned. A careful reading of modified Clause 67, Annexure-A thereto as well as the tripartite agreement entered into between the parties and the DRB clearly show that the members of the Board are to act impartially and in a judicial manner. The members are to be totally independent and in fact are to disclose their conflict of interest, if any, before becoming members. The members of the DRB are appointed with the consent of both parties. Modified Clause 67, Annexure-A and the tripartite agreement in no uncertain terms lay down the procedure to be followed by the DRB. The procedure prescribed is a fair procedure in consonance with the Rules of Natural Justice. The contractor is given an opportunity to put-forth his claims, the plaintiff has an opportunity to rebut the same, both parties can lead evidence and have a right to be heard. The procedure prescribed to determine the rights of the parties is an impartial and judicial procedure which is fair to both sides and gives equal opportunity to both parties. 35. The agreement also envisages that a formulated dispute will be referred to the DRB. The claim has first to be made to the EIC, then to CMD and thereafter referred to the DRB. There can be no manner of doubt that this is a reference of an existing dispute for decision by the DRB. 36. The only question which remains to be answered is whether the intention of the parties was to treat the decision of the DRB as a decision of an expert or of an arbitral tribunal. There can be no manner of doubt that this is a reference of an existing dispute for decision by the DRB. 36. The only question which remains to be answered is whether the intention of the parties was to treat the decision of the DRB as a decision of an expert or of an arbitral tribunal. In my opinion, keeping in view the nature of the work being undertaken by the plaintiff and the nature of the contract entered into between the parties the disputes arising between them could only be decided by experts. The decision of such disputes may require the decision of complicated technical questions which in fact a Judge may not be in a position to decide keeping in view the technical nature of the disputes. It is true that Clause 67 in terms does not use the word arbitration, arbitral tribunal etc. However, the intention of the parties is to be deciphered from all the attending circumstances. As already held above the parties had agreed that the decision of the DRB would be final and binding in case of individual claims up to Rs. 50 million. It would indeed be a paradox if in disputes involving a higher amount the parties were required to go in for arbitration but in disputes involving lower amounts they were to approach the Law Courts. This in my view was not the intention of the parties. The parties in my opinion were ad idem on the issue that the decision of the DRB was an award within the meaning of Arbitration arid Conciliation Act. Whereas in the case of disputes involving individual claims above Rs. 50 million the parties have specifically stated that after the decision/ recommendation of the DRB the aggrieved party can file review and refer the dispute to arbitration, in disputes below this amount there is no such clause. This also is an indicator that in disputes below Rs. 50 million the decision of the DRB amounts to an arbitral award. 37. In my opinion, this arbitral award would be executable under Section 36 of the Arbitration and Conciliation Act, 1996. The mere fact that modified Clause 67 only gives a right to the contractor and not to the plaintiff to refer a dispute to arbitration does not mean that the reference of the dispute is not to arbitration. 37. In my opinion, this arbitral award would be executable under Section 36 of the Arbitration and Conciliation Act, 1996. The mere fact that modified Clause 67 only gives a right to the contractor and not to the plaintiff to refer a dispute to arbitration does not mean that the reference of the dispute is not to arbitration. It will be seen from the terms of the contract that as far as the plaintiff is concerned it had many remedies such as of invoking the performance guarantees and deductions from the payments to be made to the contractor and as such in view of the terms of the contracts there would hardly be an occasion when the plaintiff would need to invoke the procedure of arbitration. However, in case the DRB awards over Rs. 50 million in an individual claim then the plaintiff is also entitled to invoke the arbitration clause against the said decision. It is quite obvious that the parties had agreed that as far as disputes up to Rs. 50 million are concerned the decision of the DRB would be final, binding and in the nature of arbitral award. 38. An Arbitral Award is final and binding under Section 35 of the Act and enforceable as a decree under Section 36 of the Act. Section 5 of the Act lays down that no judicial authority shall intervene in matters governed by Part-I of the Act except as provided for under that part. Judicial intervention is provided for only under Section 34 of the Act. 39. In view of the above discussion, 1 hold that in the present case since the decision of the DRB involves in individual dispute not exceeding Rs. 50 million, it amounts to an arbitral award. The said award could have been challenged only under Section 34 of the Arbitration and Conciliation Act, 1996. OMP No. 113 of 2005 is consequently allowed and it is held that the present suit is not maintainable and is hereby dismissed with costs.