Umri Pooph Pratappur (UPP) Tollways Pvt. Ltd. vs M.P. Road Development Corporation and Another

Held: The present Concession Agreement pertains to the construction of a State Highway situated entirely within the State and was awarded by respondent no.1, a State-controlled entity, the agreement clearly qualifies as a “works contract” u/s.2(1)(i) of the 1983 Act – Consequently, the dispute arising therefrom falls within the exclusive jurisdiction of the Madhya Pradesh Arbitration Tribunal – The Arbitration and Conciliation Act, 1996 stands excluded by operation of law in such matters – The private arbitration proceedings initiated by the appellant are therefore, non est in law, and the proper forum for adjudication is the Madhya Pradesh Arbitration Tribunal established under the 1983 Act – It is not in dispute that the appellant had initiated Reference Case before the Madhya Pradesh Arbitration Tribunal and had obtained issuance of notice – While the said reference was pending, the appellant simultaneously invoked arbitration under Clause 44.3.1 of the Concession Agreement and initiated private arbitration proceedings before the ICADR (Respondent No. 2) under the 1996 Act – This parallel invocation of remedies is impermissible in law and squarely hit by the doctrine of election and estoppel – A party cannot pursue two mutually inconsistent remedies under different legal regimes arising from the same cause of action – Clause

44.3.1 of the Concession Agreement to the extent it purports to permit private arbitration, cannot override the statutory mandate of the 1983 Act – Accordingly, the attempt of the appellant to invoke Clause 44.3.1 of the Concession Agreement and re-agitate the issue of private arbitration-already settled in Viva Highways and affirmed by this Court-is barred by the doctrine of constructive res judicata and amounts to an abuse of the process of law – Additionally, the appellant’s conduct in withdrawing the reference petition before the Madhya Pradesh Arbitration Tribunal, without seeking liberty to re-agitate the claims, and simultaneously initiating proceedings under the 1996 Act, constitutes forum shopping – This conduct, aimed at circumventing the statutory mechanism and reviving abandoned claims, is tainted with mala fides – In terms of the statutory mandate under Rule 53(3)(b) of 1985 Regulations, once a reference is withdrawn without obtaining liberty to re-agitate the same, the appellant stands precluded from initiating a fresh reference on the same subject matter – This substantive bar also applies to any attempt to pursue the same claims before alternative fora – Nonetheless, considering the nature of the dispute and in the interests of justice, appellant directed to seek revival of Reference Petition before the Madhya Pradesh Arbitration Tribunal. [Paras 11.9, 11.10, 12, 12.1, 13.1, 14, 16, 17, 17.1]