JUDGMENT : KRISHNA RAO, J. 1. The defendant has filed the present application for dismissal of the suit and for referring the parties to the Arbitration. The plaintiff has filed the suit being C.S. No. 131 of 2020 against the defendant praying for the following reliefs: “(a) A Decree of a sum of Rs. 2,63,64,552.00/- as stated in paragraph no. 71 hereinabove. (b) A decree for a sum of Rs. 1,86,64,488.00/- as stated in paragraph no. 75 hereinabove. Alternatively (c) An inquiry into damages and a decree for such amount as may be found due and payable upon such inquiry. (d) Interim interest and interest upon judgment at the rate of 18% per annum. (e) Injunction. (f) Attachment. (g) Receiver. (h) Cost. (i) Such further or other reliefs.” 2. The defendant says that plaintiff has filed the suit relied upon the General Conditions of Contract (hereinafter referred to as “GCC”), Special Conditions of Contract (hereafter referred to as “SCC”) and the Work Order issued to the plaintiff dated 18th June 2010 for Earthwork and Dyke formation for Ash Pond Package-I at 2 x 600 MW Damodar Valley Corporation, Raghunathpur, Thermal Power Project, Purulia, West Bengal which was awarded by the defendant CLE Private Limited to the plaintiff pursuant to a final auction dated 21st April, 2010. The defendant says that the GCC, SCC, Technical Specification and Erection Conditions of the Contract were duly communicated and accepted by the plaintiff through exchange of e-mail between the parties. The plaintiff has received the work order and accepted the same. 3. The defendant says that the dispute raised by the plaintiff in the suit arises out of the contract and as per clause 5 of the GCC, there is a Forum Selection Clause and as per the said Clause, the Courts of Mumbai shall have the exclusive jurisdiction in all the matters arising under the Contract. The defendant says that Clause 6 of the G.C.C. provides for Adjudicator and Arbitration. 4. The defendant submits that the work order clearly makes the GCC, SCC and Technical Specification as the documents forming the contract. The defendant says that as per contract, the parties have chosen arbitration as the mode of resolution of the disputes between the parties and thus the parties to the suit should be referred to the Arbitration. 5. 4. The defendant submits that the work order clearly makes the GCC, SCC and Technical Specification as the documents forming the contract. The defendant says that as per contract, the parties have chosen arbitration as the mode of resolution of the disputes between the parties and thus the parties to the suit should be referred to the Arbitration. 5. The defendant submits that this Court has no jurisdiction to deal and decide the instant matter as the Contract specifically provides that the Courts of Mumbai shall have exclusive jurisdiction in all matters arising under the Contract. 6. The plaintiff says that the application filed by the defendant is not maintainable under law as the defendant has not produced the original GCC, SCC and original work orders which are lying with the defendant. The plaintiff says that the defendant has acknowledged the jurisdiction of this Court by participating in the mediation proceeding referred to by this Court with the consent of both the parties and the defendant has participated in the mediation proceeding. 7. The plaintiff says that the plaintiff has never executed any GCC and SCC with the defendant and in the original work order there in no reference with respect to the arbitration. The plaintiff says that the Damodar Valley Corporation had originally awarded work contract to Reliance Infrastructure which is now CLE Private Limited. The GCC and SCC were entered by and between the Damodar Valley Corporation and CLE Private Limited and in respect of which, an arbitration proceeding had been initiated and an award had been passed in favour of the defendant. In the said proceedings, all the questions with respect to contractual obligation was granted in favour of the defendant. The plaintiff company being one of the Sub-Contractor under the defendant who participated in execution of some of the contracts in respect to Raghunathpur project but the plaintiff has not been paid in spite of the fact that all the contractual obligations between the original employer i.e. Damodar Valley Corporation and the defendant herein have been sorted out. 8. The plaintiff says that the GCC and SCC were the part of the contract between the Damodar Valley Corporation and the defendant herein. By way of sub-contract Balance Area Grading (I & II) was issued to the plaintiff specifying the quantum and cost of the work as per the work order issued to the plaintiff. 8. The plaintiff says that the GCC and SCC were the part of the contract between the Damodar Valley Corporation and the defendant herein. By way of sub-contract Balance Area Grading (I & II) was issued to the plaintiff specifying the quantum and cost of the work as per the work order issued to the plaintiff. The plaintiff says that in the work order, only reference was given under the heading “Documents” which includes SCC and GCC and on perusal of the same, it is evident that no clause of arbitration is included. 9. The plaintiff says that GCC and SCC entered between the Damodar Valley Corporation and CLE Private Limited is a separate and distinct contract from that of the work orders issued by the defendant to the plaintiff and thus the GCC and SCC does not apply to the work order issued to the plaintiff. 10. The work order dated 18th June, 2010, issued by the defendant to the plaintiff reads as follows: “WORK-ORDER CPG/VKA/BKB/10-11/15126/WO Dated: 18.06.2010 M/s. Dascon Sourav Commercial Pvt. Ltd. 289, Swamiji Sarani, 2nd Floor, Block ‘B’ Kalindi, Kolkata-700048 Kind Attn: Mr. Sumanta Das - Managing Partner (Mobile No. 09830065175) Subject: 2 x 600 MW DVC Raghunathpur Thermal Power Project, Raghunathpur, Purulia, West Bengal - Work Order for Earthwork & Dyke Formation for Ash Pond Package-I. Reference: 1. Our Enquiry dated 08.03.2010 2. Your Final negotiated offer received dated 22.04.2010 Dear Sirs, With reference to the above, we hereby issue this Work Order to you under the following terms and conditions: 1.0. Documents The documents listed below together constitute this Work Order. Volume-1 1. Work Order (including Bill of Quantities-Annexure I) 2. Special Conditions of Contract (SCC) 3. General Conditions of Contract (GCC) Volume-2 1. Technical Specification The several documents forming the Contract are to be taken as mutually explanatory of one another, but in case of ambiguities or discrepancies, the same shall be brought to the notice of the Purchaser, who shall thereupon issue instructions to the Contractor in writing. Else, unless otherwise provided in the Contract, the order of precedence of the documents forming the Contract shall be as follows: 1. Work Order 2. Special Conditions of Contract (SCC) 3. General Conditions of Contract (GCC) 4. Technical Specifications 2.0. Definition: For all the terms used herein, please refer Special Conditions of Contract (SCC) and General Conditions of Contract. 3.0. Else, unless otherwise provided in the Contract, the order of precedence of the documents forming the Contract shall be as follows: 1. Work Order 2. Special Conditions of Contract (SCC) 3. General Conditions of Contract (GCC) 4. Technical Specifications 2.0. Definition: For all the terms used herein, please refer Special Conditions of Contract (SCC) and General Conditions of Contract. 3.0. Effective Date of Contract: This Order shall be deemed to have become operative and effective from the date of signing of Contract. However you shall be under no obligation to carry out any work or incur any expenses until receipt of Notice To Proceed. Time of completion shall be reckoned from the day of commencement as above and the stage wise completion as per clause 10.0 of this order. 4.0. Notice to Proceed: UEEPL, at any time within 60 days after the Effective date, shall deliver a written ‘Notice to Proceed’ to you and the Work shall commence after 15 days from the date specified in such notice. 5.0. Termination Prior to Notice to Proceed: The contract price referred in this Work Order is based on the ‘Notice to Proceed’ issued to you. In the event, we do not issue the Notice to Proceed within the days specified above. Purchaser and Contractors shall negotiate in good faith to agree in writing to extend the date by which the Notice to Proceed must be issued and terms & conditions applicable to such extensions including price variation, if any. In the absence of such agreement either the Purchaser or the Contractor may by 7 days notice in writing to the other terminate the Contract, provided that it has used all reasonable endeavors to negotiate and agree as aforesaid. If the Contractor’s employment under the Contract is terminated prior to the issue of Notice to Proceed other than by reason of the Contractors breach, neither party shall have any liability to the other of any nature whatsoever. 6.0. Scope of Work: The Scope of Work under this contract shall be as per the Technical Specifications, BOQ and contractual provisions. 7.0. Contract Price: The Contract Price for this work order is Rs. 6.0. Scope of Work: The Scope of Work under this contract shall be as per the Technical Specifications, BOQ and contractual provisions. 7.0. Contract Price: The Contract Price for this work order is Rs. 9,10,52,936.88 (Rupees Nine Crores Ten Lacs Fifty-two Thousand Nice Hundred Thirty-Six and Paise Eighty-Eight Only) including Composite Service tax @ 4.12% as per Annexure-I. The payments shall be released on the basis of actual quantities of work completed as per the attached price schedule (Annexure-I) and on the basis of certification of the final quantities of actual work completed at site by our Engineer in charge. Unless otherwise specified, prices agreed under this Work Order shall be firm, fixed and final throughout the currency of this work order and no variation/escalation on any account shall be allowed. Amendment, if any, required to be issued to this Work Order shall be issued by Central Procurement Group, Mumbai only, but any variations from BOQ shall be governed by the terms of this order/contract. 8.0. Payment Methodology: The payment shall be made against the submission of monthly bills supported with the relevant documents as set out in the Special Conditions of Contract (SCC). All payment shall be paid within 21 days from the date of submission of bills complete in all respects. 9.0. Taxes & Duties: The price indicated above is inclusive of all tax/duties etc. applicable as on date, including but not limited to VAT/WCT, labour cess, service tax and cess on service tax etc. In case of any variation in Taxes and Duties on actuals, the same shall be reimbursed or adjusted by Purchaser against documentary evidence. The above prices are inclusive of VAT, wherever applicable. The contractor shall provide VAT/Tax Invoice. The contractor shall provide break up of material and labour in tax invoice along with VAT charged on material. The contractor shall be liable to pay the Service Tax and comply with all statutory rules and regulations, local government requirements etc. as may be applicable and binding on the Contractor. The payment for the Service tax shall be made only when the invoice raised by Contractor is in accordance to Rules of 4A of Service tax rules 2004 and as amended from time to time. Contractor shall submit copies of registration certificates in respect of West Bengal VAT and Service Tax for West Bengal works prior to submission of first bill for payment. Contractor shall submit copies of registration certificates in respect of West Bengal VAT and Service Tax for West Bengal works prior to submission of first bill for payment. Notwithstanding, what is stated hereinabove, the Employer shall be entitled to demand at any time during the tenure of this contract and the Contractor shall be obliged to furnish the documentary proof towards remittance of service tax or any other taxes or duties (as may be applicable and within the scope of contractor’s obligation in terms of this contract) to ensure that the Contractor is complying with all statutory rules & regulations in force during the terms of this Contract. The contract is based on existing state level VAT, CST, Excise Duty and Service Tax etc. as may be applicable to the Contractor. If GST, at both the Central Level and at State Levies is introduced in the coming future, net impact will be claimed by us at source subject to verification for all transactions effected by the Contractor after the effective date of introduction of such GST. 10.0. Completion Time: As per Special Conditions of Contract (SCC) 11.0. Liquidated Damaged: As per Special Conditions of Contract (SCC) 12.0. Terms of payment: As per Special Conditions of Contract (SCC) 13.0. Guarantee for Contract Performance-cum-Defect Liability: As per Special Conditions of Contract (SCC) 14.0. Free Issue Items: As per Special Conditions of Contract (SCC) 15.0. Defect Liability Period: As per Special Conditions of Contract (SCC) 16.0. Construction Water & Power: As per Special Conditions of Contract (SCC) 17.0. Communication: For issuance of ‘NTP’ and for further instruction regarding the execution of this work, you are requested to kindly contact: Mr. Raghav Trivedi, Project Director, Utility Energytech and Engineers Pvt. Ltd. H-146/147, Sector-63 Noida-201301, Uttar Pradesh Mobile: 09350282556 Phone: 0120-3068375 All other technical Specifications, Commercial Terms & Conditions shall be strictly as per our tender enquiry specification & the agreed devlations. This is in line with various discussions and agreements reached and would request you to sign and return a copy of this Work Order as a token of your acceptance within seven days of receipt of this Work Order. In case the acknowledged copy of this Later of Award is not submitted within the above specified period, this contract shall be deemed to have been accepted in entirety by the Contractor. Thanking You Yours Faithfully For Reliance Infrastructure Limited.” 11. In case the acknowledged copy of this Later of Award is not submitted within the above specified period, this contract shall be deemed to have been accepted in entirety by the Contractor. Thanking You Yours Faithfully For Reliance Infrastructure Limited.” 11. In the work order, all the terms have been specified but there is no term of Arbitration has been specified. In the General Conditions of Contract, the word “Subcontractor” has been defined which reads as follows: “Subcontractor, including vendors, means any person to whom execution of any part of the Facilities, including preparation of any design or supply of any Plant and Equipment, is subcontracted directly or indirectly by the Contractor, and includes its legal successors or permitted assigns.” In the GCC at Clause 3.9, “Independent Contractor” has been defined which reads as follows: “3.9. Independent Contractor The Contractor shall be an independent contractor performing the Contract. The Contract does not create any agency, partnership, joint venture or other joint relationship between the parties hereto. Subject to the provisions of the Contract, the Contractor shall be solely responsible for the manner in which the Contract is performed. All employees, representatives or Subcontractors engaged by the Contractor in connection with the performance of the Contract shall be under the complete control of the Contractor and shall not be deemed to be employees of the Employer, and nothing contained in the Contract or in any subcontract awarded by the Contractor shall be construed to create any contractual relationship between any such employees, representatives of Subcontractors and the Employer.” In the GCC at Clause 6, Settlement of Disputes have been defined which reads as follows: “6. Settlement of Disputes 6.1.1. 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 to be appointed jointly by both the parties, with a copy to the other party. 6.1.2 The Adjudicator shall give its decision in writing to both parties within twenty-eight (28) days of a dispute being referred to it. If the Adjudicator has done so, and no notice of intention to commence arbitration has been given by either the Employer or the Contractor within fifty-six (56) days of such reference, the decision shall become final and binding upon the Employer and the Contractor. Any decision that has become final and binding shall be implemented by the parties forthwith. 6.1.3 Should the Adjudicator resign or die, or should the Employer and the Contractor agree that the Adjudicator is not fulfilling its functions in accordance with the provisions of the Contract, another retired Judge of High Court/Supreme Court of India shall be jointly appointed by the Employer and the Contractor as Adjudicator under the Contract. The Adjudicator shall be paid fee plus reasonable expenditures incurred in the execution of its duties as Adjudicator under the Contract. These costs shall be divided equally between the Employer and the Contractor. 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. 6.2.2 Any dispute in respect of which a notice of intention to commence arbitration has been given, in accordance with GCC Sub-Clause 6.2.1, shall be finally settled by arbitration. Arbitration may be commenced prior to or after completion of the Facilities. 6.2.3 Any dispute submitted by a party to arbitration shall be heard by an arbitration panel composed of three arbitrators, in accordance with the provisions set forth below. Arbitration may be commenced prior to or after completion of the Facilities. 6.2.3 Any dispute submitted by a party to arbitration shall be heard by an arbitration panel composed of three arbitrators, in accordance with the provisions set forth below. 6.2.4 The Employer and the Contractor shall each appoint one arbitrator, and these two arbitrators shall jointly appoint a third arbitrator, who shall chair the arbitration panel. If the two arbitrators do not succeed in appointing a third arbitrator within twenty-eight (28) days after the latter of the two arbitrators has been appointed, the third arbitrator shall be appointed in accordance with the provisions of the Arbitration and Conciliation Act, 1996 as amended from time to time. 6.2.5 If one party fails to appoint its arbitrator within forty-two (42) days after the other party has named its arbitrator, the party which has named an arbitrator may appoint arbitrator in accordance with the provisions of the Arbitration and Conciliation Act, 1996 as amended from time to time. 6.2.6 If for any reason an arbitrator is unable to perform its function, the mandate of the Arbitrator shall terminate in accordance with the provisions of applicable laws as mentioned in GCC Clause 5 (Governing Law) and a substitute shall be appointed in the same manner as the original arbitrator. 6.2.7 Arbitration proceedings shall be conducted (1) in accordance with the rules of procedure designated in the SCC, (ii) in the place designated in the SCC, and (iii) in the language in which this Contract has been executed. 6.2.8 The decision of a majority of the arbitrators (or of the third arbitrator chairing the arbitration panel, if there is no such majority) shall be final and binding and shall be enforceable in any court of competent jurisdiction as decree of the court. The parties thereby waive any objections to or claims of immunity from such enforcement. 6.2.9 The arbitrators shall give reasoned award. 6.3 Notwithstanding any reference to the Adjudicator or arbitration herein, (a) the parties shall continue to perform their respective obligations under the Contract unless they otherwise agree. (b) the Employer shall pay the Contractor any monies due to the Contractor.” 12. Sub-Section (5) of Section 7 of the Arbitration and Conciliation Act, 1996 reads as follows: “7. Arbitration Agreement: (1)..................... (2)..................... (3)..................... (4)..................... (b) the Employer shall pay the Contractor any monies due to the Contractor.” 12. Sub-Section (5) of Section 7 of the Arbitration and Conciliation Act, 1996 reads as follows: “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.” 13. The issue is no more res integra. The provisions of sub-section (5) of Section 7 of the Arbitration and Conciliation Act, 1996 have been considered by the Hon’ble Supreme Court in the case of M.R. Engineers and Contractors Private Limited vs. Som Datt Builders Limited, (2009) 7 SCC 696 . After considering the relevant passages from Russell on Arbitration and various English judgments, the Hon’ble Supreme Court held thus: “24. The scope and intent of Section 7(5) of the Act may therefore be summarised thus: (i) An arbitration clause in another document, would get incorporated into a contract by reference, if the following conditions are fulfilled: (1) the contract should contain a clear reference to the documents containing arbitration clause, (2) the reference to the other document should clearly indicate an intention to incorporate the arbitration clause into the contract, (3) the arbitration clause should be appropriate, that is capable of application in respect of disputes under the contract and should not be repugnant to any term of the contract. (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) Where the contract provides that the standard form of terms and conditions of an independent trade or professional institution (as for example the standard terms and conditions of a trade association or architects association) will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. Sometimes the contract may also say that the parties are familiar with those terms and conditions or that the parties have read and understood the said terms and conditions. (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 the Government is a party), the arbitration clause forming part of such general conditions of contract will apply to the contract between the parties.” 14. It could thus be seen that the Hon’ble Supreme Court has held that 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. It has been held that 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. It has further been held that 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. 15. The Hon’ble Supreme Court further held that where the contract provides that the standard form of terms and conditions of an independent trade or professional institution will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. The Hon’ble Supreme Court further held that where the contract provides that the standard form of terms and conditions of an independent trade or professional institution will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. It has been held that sometimes the contract may also say that the parties are familiar with those terms and conditions or that the parties have read and understood the said terms and conditions. It has also been held that 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, the arbitration clause forming part of such general conditions of contract will apply to the contract between the parties. 16. A perusal of sub-section (5) of Section 7 of the Arbitration Act itself would reveal that it provides for 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. 17. It is thus clear that a reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause contained in the document into the contract. 18. The Hon’ble Supreme Court in the case of Inox Wind Limited vs. Thermocables Limited, (2018) 2 SCC 519 has distinguished the law laid down in the case of M.R. Engineers and Contractors Private Limited (supra). In the said case (i.e. Inox Wind Limited), the Hon’ble Supreme Court has held that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. Though the Hon’ble Supreme Court in the case of Inox Wind Limited (supra) agrees with the judgment in the case of M.R. Engineers and Contractors Private Limited (supra), it holds that general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause. Though the Hon’ble Supreme Court in the case of Inox Wind Limited (supra) agrees with the judgment in the case of M.R. Engineers and Contractors Private Limited (supra), it holds that general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause. In the said case (i.e. Inox Wind Limited), the Hon’ble Supreme Court found that the purchase order was issued by the appellant therein in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The respondent therein by his letter had confirmed its acceptance. The Hon’ble Supreme Court found that the case before it was a case of a single-contract and not two-contract case and, therefore, held that the arbitration clause as mentioned in the terms and conditions would be applicable. 19. In the present case admittedly, the plaintiff is a subcontractor under the defendant. The plaintiff has not entered into any GCC and SCC with the defendant. The GCC and SCC were entered between the Damodar Valley Corporation. In the work order issued by the defendant to the plaintiff the arbitration clause has not incorporated or any reference has been made though the other clauses and references have been described. 20. In view of the above, this Court finds that neither the Arbitration Clause nor the Forum Selection Clauses are applicable in the case of the plaintiff and thus the matter cannot be referred to the arbitration and the Forum Selection Clauses cannot be invoked. 21. G.A. No. 3 of 2023 is thus dismissed.