ORDER The National Highways Authority of India took up the task of Designing, Engineering, Financing, Constructing, Operating and maintaining the N.H-67 road between Trichirapalli – Karur on build operate and transfer basis. 2. Suffice to say that in this process, a construction agreement was executed on 14.03.2008 between Utility Energy Tech and Engineers Private Ltd., and the respondent in a joint venture of the respondent and Ksheerabad Construction Private Limited. This agreement contains a dispute resolution procedure in Clause-45. Sub-clause 45.3 has the Arbitration Procedure, while 45.4 specifies the place of Arbitration. These relevant clauses are reproduced hereunder: ''45.3. Arbitration Procedure: Subject to the provisions of Article 45.1 and 45.2, any dispute, which is not resolved by amicable resolution between the parties or by a reference to mediation, shall be finally settled by binding arbitration under the Arbitration and Conciliation Act, 1996. The arbitration shall be by a panel of three arbitrators, one to be appointed by each Party and the third to be appointed by the two arbitrators appointed by the Parties. The Party requiring arbitration shall appoint an arbitrator in writing, inform the other party about such appointment and call upon the other party to appoint its arbitrator. If within 15 days of receipt of such intimation the other party fails to appoint its arbitrator, the Party seeking appointment of arbitrator may take further steps in accordance with Arbitration Act. 45.4. Place of Arbitration: The place of arbitration shall be Mumbai for all Disputes.'' 3. An agreement was executed on 29.07.2009 sub-contracting part of the work between the respondent and the petitioner. The relevant portion of the agreement germane for the present purpose reads as under: ''2. Subcontractor hereby agrees, undertakes to execute the said value of work, and is responsible for the efficient and successful execution of the work and is to be completed as per the contract period specified in the contract document. a........ b........ All the conditions and special conditions of contract, specifications (general and additional clauses relating to the works and quality specified in the relevant agreement between the Construction Contractor and the Employer are binding on the Subcontractor.” 4. Annexure-I specifying the 'Terms and Conditions' Annexed thereto inter alia provides Clause – 9.10 as under: ''9.10. For items which are not mentioned in this Agreement Clauses, terms and conditions of Agreement between Contractor and EPC Concessionaire will be applicable.'' 5. Annexure-I specifying the 'Terms and Conditions' Annexed thereto inter alia provides Clause – 9.10 as under: ''9.10. For items which are not mentioned in this Agreement Clauses, terms and conditions of Agreement between Contractor and EPC Concessionaire will be applicable.'' 5. Disputes have arisen inter se the parties arising from the aforesaid agreement, which resulted in filing of the present petition under Sections 11(3) and (5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to 'the said Act'). The respondent has opposed the petition. The defence raised is that there is no arbitration agreement inter se the parties whatsoever as the agreement dated 29.07.2009 does not contain the arbitration clause. There is also stated to be no arbitration clause by incorporation by making reference to the agreement dated 14.03.2008, so as to qualify it under Section 7(5) of the said Act, which reads as under: ''7. Arbitration Agreement: - (1)......... (2)............ (3)............ (4).......... (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.'' 6. In fact, the respondent claims that the petitioner has filed an application under Section 9 of the said Act being O.P.No.18 of 2013 before the learned Principal District Court, Karur and the pleadings of the same could also be referred to show that the parties were never ad idem on the existence of the Arbitration Clause. This application, however, came to be ordered in favour of the petitioner against which an appeal is pending, but the issue raised on existence of a valid arbitration agreement is stated to have not been commented upon. 7. Learned counsel for the petitioner pleaded that the arbitration clause stands incorporated in the agreement dated 29.07.2009 in view of the portion of clause-2 extracted aforesaid stipulating that all conditions and special conditions of contract in respect of the agreement between the respondent and the employer are to be binding on the sub contractor. This read with clause – 9.10 of Annexure-I dealing with the terms and conditions is said to conclude the process of incorporation in so far as the inter se communications between the parties are concerned. This read with clause – 9.10 of Annexure-I dealing with the terms and conditions is said to conclude the process of incorporation in so far as the inter se communications between the parties are concerned. Learned counsel for the petitioner drew the attention of the Court to the letter dated 16.04.2011 of the petitioner to the respondent, which records as under: ''After so much has transpired and we are being pushed to one corner all the time and our issues remain unsolved, we find we have no other alternative but to initiate proceedings as per Clause 45(Dispute Resolution Procedure). We do not want to unnecessarily pursue any legal course of action and wish to amicably resolve all our issues but if pushed beyond our patience we will have no option.'' The aforesaid is thus stated to make an unequivocal reference to clause-45 as the dispute resolution Clause, but it was never replied to (this letter however is stated not to be forming part of the record of Section-9 proceedings). 8. A reference is also made to another letter dated 12.04.2011 of the petitioner, which is counter-signed by the respondent containing clause-3 as under: ''It is further agreed between the parties that the claims, subsisting, if any, against each other, in respect of the work done till 10th April 2011 under the provisions of the Sub contract Agreement entered into by and between the parties herein shall be settled amicably and neither party shall seek legal recourse or refer the matter to any arbitration process.'' In respect of the aforesaid, the petitioner submits that it records an agreement to settle the disputes amicably with neither party taking legal recourse or ''referring the matter to any arbitration process''. On the other hand, learned counsel for the respondents refers to the pleadings under Section-9 proceedings in O.P.No.18 of 2013, where in paragraph-23, it has been stated as under: ''23. On the other hand, learned counsel for the respondents refers to the pleadings under Section-9 proceedings in O.P.No.18 of 2013, where in paragraph-23, it has been stated as under: ''23. Since the repeated requests of the petitioner to the respondent for payment of the legitimate amounts due to them was not considered and paid heed to by the respondent, the Managing Director of the petitioner was put to the necessity of informing the Officials of the respondent over phone that the petitioner will continue the work entrusted to them in the Project but will be constrained to initiate legal proceedings against the respondent for recovery of the amount due to them so far by approaching the competent Civil Court. But the officials of the respondent merely informed the petitioner's Managing Director that the petitioner cannot do so as there is an arbitration clause in the Agreement but refused to divulge other details. Though in the Agreement dated 29.07.2009 entered into between the petitioner and the respondent, it is stated that the relevant Agreement between the respondent and the employer is binding on the sub-contractor viz., the petitioner, yet the copy of the relevant agreement has never been furnished to the petitioner at all. Hence the petitioner is totally kept in dark about the Terms and Conditions of the Agreement till now. Under such circumstances, the respondent is not entitled to take shelter under the alleged Agreement. However in view of the fact that the petitioner was informed about the existence of an arbitration clause, the petitioner is filing the present petition invoking the jurisdiction of this Hon'ble Court where the cause of action arose when the Agreement Dated 29.07.2009 between the petitioner and the respondent was executed and completed at Kulithalai and where the construction works are being carried on by the petitioner within the jurisdiction of this Hon'ble Court and where the respondent carries on their business within the territorial jurisdiction of Hon'ble Court.'' 9. A reading of the aforesaid shows that the petitioner really professed ignorance about the agreement between the respondent and the employer and claims that when they threatened to initiate legal proceedings against the respondent, they were orally informed about that agreement, but without making any copy of the agreement available. A reading of the aforesaid shows that the petitioner really professed ignorance about the agreement between the respondent and the employer and claims that when they threatened to initiate legal proceedings against the respondent, they were orally informed about that agreement, but without making any copy of the agreement available. Thus, ''the petitioner is totally kept in dark about the terms and conditions of the agreement till now.'' It is only on the information about the existence of the Arbitration Clause, the petitioner claims to have filed Section-9 proceedings. It is thus, submitted that it could hardly be canvassed on behalf of the petitioner that the parties were ad idem on the existence of an Arbitration Clause or its incorporation from one contract to the other. 10. Learned counsel for the respondent referred to the Judgment of the Hon'ble Supreme Court in M.R.Engineers and Contractors Private Ltd., vs. Som Datt Builders Ltd., (2009) 7 SCC 696 . In fact, the submissions of the learned counsel for the petitioner are also predicated on certain paragraphs of the said Judgment, which is thus required to be looked at carefully, being the only judicial precedent referred to by the learned counsel for the parties. 11. In this behalf, the following paragraphs are reproduced: ''15.Section 7(5) therefore requires a conscious acceptance of the arbitration clause from another document, by the parties, as a part of their contract, before such arbitration clause could be read as a part of the contract between the parties. But the Act does not contain any indication or guidelines as to the conditions to be fulfilled before a reference to a document in a contract can be construed as a reference incorporating an arbitration clause contained in such document, into the contract. In the absence of such statutory guidelines, the normal rules of construction of contracts will have to be followed. 16. There is a difference between reference to another document in a contract and incorporation of another document in a contract, by reference. In the first case, the parties intend to adopt only specific portions or part of the referred document for the purposes of the contract. In the second case, the parties intend to incorporate the referred document in entirety, into the contract. In the first case, the parties intend to adopt only specific portions or part of the referred document for the purposes of the contract. In the second case, the parties intend to incorporate the referred document in entirety, into the contract. Therefore when there is a reference to a document in a contract, the court has to consider whether the reference to the document is with the intention of incorporating the contents of that document in entirety into the contract, or with the intention of adopting or borrowing specific portions of the said document for application to the contract.'' 12. Learned counsel for the respondents referred to the significance of the difference between a reference to another document in a contract and incorporation of another document in a contract by reference. The second requires the parties to incorporate the referrred document entirely into the contract. In the absence of guidelines in Section 7(5) of the said Act to be fulfilled before a reference to a document in a contract can be construed as a reference incorporating an arbitration clause, it has been observed that the normal rules of construction of contracts would have to be followed. The legal position has been summarised as under: “24. The scope and intent of section 7(5) of the Act may therefore be summarized thus: (i)....... (ii) When the parties enter into a contract, making a general reference to another contract, such general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract between the parties. The arbitration clause from another contract can be incorporated into the contract (where such reference is made), only by a specific reference to arbitration clause. (iii) Where a contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, the terms of the referred contract in regard to execution/performance alone will apply, and not the arbitration agreement in the referred contract, unless there is special reference to the arbitration clause also. (iv) ......., (v) Where the contract between the parties stipulates that the Conditions of Contract of one of the parties to the contract shall form a part of their contract (as for example the General Conditions of Contract of the Government where Government is a party), the arbitration clause forming part of such General Conditions of contract will apply to the contract between the parties. ” 13. The submission of the learned Senior Counsel for the respondent thus is that a general reference made to the earlier contract would not take the effect of incorporating the arbitration clause from the referred document and there has to be a specific reference to an Arbitration Clause. The Clauses relied upon by the petitioner are reproduced aforesaid, but those are pleaded not to contain any such specific reference. Even if the performance of the subsequent contract has to be in terms of the earlier contract, the terms of the referred contract in regard to execution/performance will alone apply and not the arbitration agreement in the referred contract unless there is special reference to Arbitration Clause also. 14. On the other hand, learned counsel for the petitioner referred to sub-clause (5) aforesaid to contend that where the condition of the earlier contract is to form part of the contract like the general conditions of the contract of the Government, where the Government is a party, the Arbitration Clause forming part of such general conditions of the contract will apply to the contract between the parties. 15. The attention of the court is also drawn to paragraph-33 of the Judgment as under: ''33.An arbitration clause though an integral part of the contract, is an agreement within an agreement. It is a collateral term of a contract, independent of and distinct from its substantive terms. It is not a term relating to `carrying out' of the contract. In the absence of a clear or specific indication that the main contract in entirety including the arbitration agreement was intended to be made applicable to the sub-contract between the parties, and as the wording of the subcontract discloses only an intention to incorporate by reference the terms of the main contract relating to execution of the work as contrasted from dispute resolution, we are of the view that the arbitration clause in the main contract did not form part of the subcontract between the parties.'' 16. The ratio laid down aforesaid is that there should be clear and specific indication that the main contract in its entirety, including the arbitration agreement, was intended to be made applicable to the subcontract between the parties. Since the wordings of the sub-contract disclosed only an intention to incorporate by reference the terms of the main contract relating to the execution of the work as contrasted from dispute resolution, it was opined that the arbitration clause in the main contract did not form part of the sub-contract between the parties. 17. The Hon'ble Supreme Court has relied upon the earlier pronouncement in Alimenta SA vs. National Agricultural Co-op. Marketing Federation of India Ltd., [ 1987 (1) SCC 615 ]. The specific clause referred to in that Judgment was found to reflect a position in the absence of use of the words ''all disputes arising between the parties'' or ''all disputes arising under the contract''. 18. On a careful perusal of the pleadings and documents as also submissions of the learned counsel for the parties, more specifically the reading of the clauses, this court is of the view that part of clause-2 of the agreement dated 29.07.2009 extracted aforesaid refers to only ''works and quality specified in the relevant agreement between the construction contractor and the employer''. All the conditions and the sub-conditions of contract are binding on the sub contractor/petitioner, but the unambiguous reference is only to ''work and quality specified'' without any reference to the arbitration clause. It is not a case of only absence of a reference to arbitration clause, but the reference being specific to the ''work and quality specified.'' An expanded meaning cannot be given to this Clause. It is in this context that Clause-9.10 of Annexure-I specifying the terms and conditions has to be read. Once again, it refers to ''Items'' which are not mentioned in the agreement clauses where conditions of the earlier agreement would be applicable. Thus, this would refers to the items to be used. 19. The aforesaid is supported by the pleadings in the Section-9 petition filed by the petitioner which expresses ignorance of the terms and conditions of the earlier agreement and in fact, it is said that the remedy of arbitration was being invoked only because of what is orally stated to have been said by the representatives of the respondent at that stage. If the petitioner did not even know of the existence of the earlier agreement and the arbitration clause, it can hardly be said that parties were ad idem on this issue. It is not possible to accept the plea of the learned counsel for the petitioner that this is only some what defective pleading. 20. The reference to the two communications of the petitioner is also of not much assistance in response to the letter dated 16.04.2011 referring to clause-45. The absence of any reply on the part of the respondent cannot be assumed to be a recourse to that clause by the parties. Similarly, the letter dated 12.04.2011 can only be useful for the purposes of intent of the petitioner communicated for an amicable settlement , failing which legal recourse would be taken. 21. Now coming to the judicial pronouncement in M.R.Engineers and Contractor Pvt. Ltd case cited supra, the significant difference between the reference to another document and incorporation of another document in a contract by reference has been pointed out. This Court cannot find any intention to incorporate all the terms and conditions of the earlier contract in the subsequent contract, in view of the aforesaid facts and circumstances. The ratio summarised in paragraph-24 of the Judgment requires arbitration clause from another contract in question only by specific reference to the arbitration clause. Such specific reference is absent. It has already been pointed out aforesaid as to and in what context, the earlier contract has to be relied upon, being limited in nature. Sub-clause 5 as pleaded by the petitioner would not come to his aid in view of the limited contours of what is sought to be either incorporated or to be referred to from the earlier contract. It will be useful to refer to the observations of the Hon'ble Supreme Court aforesaid in paragraph-33 that an arbitration clause, though an integral part of the contract, is an agreement within an agreement. It is a collateral term of contract which is independent of and distinct from the substantive terms and is not confined with carrying out the terms of the contract. There is clearly absence of any specific condition that all the terms and conditions of the earlier contract would apply, including the arbitration clause. It is a collateral term of contract which is independent of and distinct from the substantive terms and is not confined with carrying out the terms of the contract. There is clearly absence of any specific condition that all the terms and conditions of the earlier contract would apply, including the arbitration clause. The wordings of clause 9.10 of the Annexure-I are in the context of the terms and conditions provided therein – where such terms and conditions in respect of ''Items'' have not been provided, recourse could be had to the agreement clauses of the earlier agreement. This read with part of Clause-2 of the agreement dated 27.09.2009, leaves no manner of doubt that the reference is restricted to 'works and quality' or at best, some financial terms, it may be referred to. 22. The result of the aforesaid is that there is absence of any agreement for arbitration to settle the disputes between the petitioner and the respondent. 23. The Original Petition is accordingly dismissed, leaving the parties to bear their own costs.