The Delhi High Court in Srishti Infrastructure Development Corporation Ltd. v. Ircon International Ltd. held that an arbitration agreement in a contract is always considered as a separate and severable clause and supersession of this clause ought not to be taken lightly.

The Petitioner and Respondent had signed a couple of contracts between them. One of them was the General Conditions of Contract (GCC), while the other was Special Conditions of Contract (SCC). The SCC contained a clause that in case of a conflict between the GCC and the SCC, special conditions would prevail. The arbitration clause was present in the GCC, while the SCC contained a clause which stated that any conflict would be solved by negotiations and mutual deliberations.

Therefore, the Respondent argued that the arbitration clause was also superseded by the SCC and the present petition under Section 11 should not withstand.

The High Court held that there was no evident conflict in this case. Also whether the SCC overrides the relevant clause requires a detailed interpretation of the provisions of the contract which the Court does not have the jurisdiction to get into under Section 11. The Arbitrator would have the jurisdiction do so, especially using the doctrine of kompetenz-kompetenz. The High Court also referred to a judgment[1] by the Apex Court which held that usually a subject matter of arbitrability cannot be decided at the stage of Section 8 or 11, unless it’s a clear case of deadwood. Thereafter, the Court appointed a Sole Arbitrator and referred the parties to arbitration.

[1] Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1