1. These Applications have been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (“the Act”), seeking appointment of an arbitrator in connection with disputes and differences that are said to have arisen under agreements relating to three different wind power generating turbine projects between the parties. Since the pattern across the three Applications is similar, I have taken one of them (Commercial Arbitration Application (L) No. 3053 of 2025) as an example, in order to deal with the core issue presented by the Respondent in resisting these Applications.

2. Gujarat Gems Pvt. Ltd. (admittedly, the erstwhile name of the Respondent, Morries Energy Ltd.) issued a Purchase Order to Suzlon Energy Ltd. (“Suzlon Energy”) dated March 30, 2011 for supply of a wind turbine generator for a price of Rs. ~3.31 crores. The Purchase Order provided for Operation and Maintenance (“O&M”) free of cost for two years, and indicated that a service contract would be executed with an entity designated by Suzlon Energy. The Purchase Order was made subject to arbitration under the Act by use of the following clause:-

“This Purchase Order is subject to Arbitration under the Indian Arbitration & Conciliation Act, 1996.”

3. On the same date i.e. March 30, 2011, another Purchase Order was executed by the Respondent with Suzlon Infrastructure Services Ltd. (“Suzlon Infrastructure”) for the work of erection, installation and commissioning of the wind turbine generator. This was for a consideration of Rs. ~15.57 lakhs only payable towards labour and commissioning charges. This Purchase Order recorded that Suzlon Infrastructure would provide operations, maintenance and security services for the turbine from the third year to the fifth year for an annual fee of Rs. 11 lakhs, with a 5% annual escalation. This Purchase Order too had an identical arbitration clause.

4. There is then an “Annexure IV” which evidently states that it is “Forming part of the Operations and Management Agreement dated 29th June 2017”. This instrument is evidently signed by both, the Respondent and a “SGSL”, which is admittedly Suzlon Global Services Ltd. (“SGSL”). This document shows that it relates only to O&M service charges and indicates the charges payable right since October 1, 2014. The description of this rate conforms to the arrangement made earlier – of a 5% escalation every year, and the charges indicated are for O&M. Evidently, the parties worked with each other pursuant to the terms agreed under the Purchase Orders and eventually executed an O&M Contract dated June 29, 2017, which reduced to writing the payments that had been contracted right since October 2014.

5. An invocation notice dated October 5, 2024 was issued by SGSL. The invocation was resisted by the Respondent on the premise that there is no arbitration agreement. It is also contended by the Respondent that the services relate to O&M and it cannot be said that such services are covered by either of the Purchase Orders.

6. I have heard Learned Counsel for both sides. The primary objection of the Respondent is that the Purchase Orders relate to supply of turbine, installation and labour. For O&M a separate agreement was to be executed. While Annexure IV is shown as being part of an agreement, there is nothing to show what agreement it was a part of and whether it contained an arbitration agreement. It was also submitted that the Purchase Orders were issued to Suzlon Energy and to Suzlon Infrastructure, while the arbitration invocation has been effected on behalf of SGSL, which is the Applicant in the three Applications. Therefore, it is contended on behalf of the Respondent that there is no privity of contract between the Applicant and the Respondent to an arbitration agreement.

7. Learned Counsel for the Applicant is at pains to point out that there is no confusion about the identity of the party to the arbitration agreement. It is seen from the submissions made on behalf of the Applicant that Suzlon Infrastructure is a subsidiary of Suzlon Energy. The Purchase Order issued by the Respondent to Suzlon Infrastructure related to labour and installation of the turbine purchased from Suzlon Energy but also refers to O&M and specifically provides that the agreement on O&M to be executed would be subject to the terms and conditions of that very Purchase Order (reference to “herein”) and such other terms of Suzlon Infrastructure’s draft contracts. The O&M from the third year was executed pursuant to this Purchase Order and therefore since it was agreed by the Respondent (in fact the Purchase Order was issued by the Respondent on its own letterhead) that the terms of the Purchase Order would govern the O&M Contract, the arbitration agreement is an integral part of such O&M service.

8. Learned Counsel for the Applicant submitted that the absence of such a reference to the terms of that very Purchase Order binding the O&M Contract in the Purchase Order issued to Suzlon Energy is not relevant since it only relates to the purchase of the turbine and indicated that an O&M Contract would be executed with an entity designated. Such a contract was elaborated upon in the Purchase Order issued to Suzlon Infrastructure, and that Purchase Order also states that the terms of that Purchase Order would be an integral part of the O&M Contract. Therefore, the submission is, a contract with SGSL would necessarily include in its ambit the arbitration agreement in the Purchase Order.

9. That apart, it was submitted that Suzlon Energy’s O&M operations were transferred on a slump sale basis to SGSL on March 29, 2014. This is a matter of public record. Learned Counsel for Suzlon also tendered extracts from the annual report of Suzlon Energy, a listed company, to demonstrate the slump sale. Therefore, the O&M undertaking of Suzlon Energy, whether carried out on its own or through its subsidiary, stood transferred to SGSL, and with such transfer the arbitration agreement and the reference to arbitration as contained in the Purchase Order would now sit in SGSL.

10. I have given my anxious consideration to the material on record which I have mined through, primarily with the assistance of the Learned Counsel. On the face of it, arguably, there is an arbitration agreement in the Purchase Orders. The Purchase Order issued to Suzlon Infrastructure does provide that the wider O&M Contract would be governed by the terms of the Purchase Order and other terms stipulated in Suzlon Infrastructure’s draft contracts. Normally with this exercise it would become clear that there is a prima facie existence of the arbitration agreement governing the O&M Contract. Indeed, one would need to leave it open to the Arbitral Tribunal to rule on its own jurisdiction under Section 16 of the Act.

11. The scope of review under Section 11 is explicitly set out in Section 11(6A) of the Act. It is now trite law, with particular regard to the decisions of a seven-judge Bench in the Interplay Judgement (In Re: Interplay Between Arbitration Agreements Under Arbitration and Conciliation Act, 1996 & Stamp Act, 1899 – (2024) 6 SCC 1) followed by multiple others, including SBI General (SBI General Insurance Co. Ltd. v. Krish Spinning – 2024 SCC OnLine SC 1754) and Patel (Ajay Madhusudan Patel v. Jyotrindra S. Patel – 2024 SCC OnLine SC 2597) that the  Section 11 Court ought not to venture beyond examining the existence of a validly existing arbitration agreement that has been formally executed. Even questions of existential substance is a matter that falls squarely in the domain of the arbitral tribunal, in view of Section 16 of the Act.

12. However, there is one factual facet of the matter that was not noticed or not highlighted by either party, and would warrant attention. On a close scrutiny of the record it becomes evident that the disputes and differences between the parties all relate to the O&M services and in particular, payments relating to O&M services. Towards this end, invoices raised by SGSL have to be seen. In two out of the three Applications (CARAPL 3053 of 2025 and CARAPL 3776 of 2025) every single invoice issued by SGSL contains a specific condition that states “All disputes are subject to TAMIL NADU jurisdiction.” In the third Application (CARAPL 4275 of 2025), contains a similar condition by “TAMIL NADU” stands replaced by “RAJASTHAN”.

13. Now, the arbitration clause relied upon is the one contained in the Purchase Orders. That clause does not have any reference to any place as the seat or venue of arbitration.

14. Therefore, I had to examine if any part of the cause of action arose within the territorial jurisdiction of this Court. It is seen from the very same invoices and the correspondence and other material that SGSL has used addresses in Tamil Nadu (in the two cases where the jurisdiction clause provides for Tamil Nadu) while the invoices where the jurisdiction provides for Rajasthan, the SGSL’s address is in Rajasthan. The address for the Respondent is indeed uniformly in Maharashtra. Some of the wind turbines to which the O&M services relate are also located in Maharashtra. Therefore, it is apparent that a part of the cause of action has arisen in Maharashtra.

15. Therefore, since it is evident that disputes and differences have arisen between the parties and there is an arbitration agreement covering the O&M component of the work involved in the Purchase Order, and it was expressly agreed that the terms and conditions of the Purchase Order would govern the O&M Contract, the formal existence of an arbitration agreement is discernible. If there is any existential question about the arbitration agreement that falls in the domain of the Arbitral Tribunal, which has powers to deal with it under Section 16 of the Act.

16. In these circumstances, all the three Applications are hereby finally disposed of, in terms of the following order:

A] Justice (Retd.) S.C. Gupte, a former Judge of this Court is hereby appointed as the Sole Arbitrator to adjudicate upon the disputes and differences between the parties arising out of and in connection with the Agreement referred to above;Office Address:-

376-A, Gupte House,

9th Road, Chembur,

Mumbai- 400 071

Email ID: guptesc@gmail.com

B] A copy of this Order will be communicated to the Learned Sole Arbitrator by the Advocates for the Applicant within a period of one week from today. The Applicant shall provide the contact and communication particulars of the parties to the Arbitral Tribunal along with a copy of this Order;

C] The Learned Sole Arbitrator is requested to forward the statutory Statement of Disclosure under Section 11(8) read with Section 12(1) of the Act to the parties within a period of two weeks from receipt of a copy of this Order;

D] The parties shall appear before the Learned Sole Arbitrator on such date and at such place as indicated, to obtain appropriate directions with regard to conduct of the arbitration including fixing a schedule for pleadings, examination of witnesses, if any, schedule of hearings etc. At such meeting, the parties shall provide a valid and functional email address along with mobile and landline numbers of the respective Advocates of the parties to the Arbitral Tribunal. Communications to such email addresses shall constitute valid service of correspondence in connection with the arbitration;

E] All arbitral costs and fees of the Arbitral Tribunal shall be borne by the parties equally in the first instance, and shall be subject to any final Award that may be passed by the Tribunal in relation to costs.

17. Needless to say, nothing contained in this order is an expression of an opinion on merits of the matter or the relative strength of the parties. All issues on merits are expressly kept open to be agitated before the arbitral tribunal appointed hereby.

18. All actions required to be taken pursuant to this order shall be taken upon receipt of a downloaded copy as available on this Court’s website.