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2. As the parties and issues in both the arbitration petitions and the transferred cases are one and the same, both arbitration petitions and the transferred cases shall stand disposed of by this common order. For convenience, parties are referred to as per their array in Arbitration Petition No.30 of 2016.

3. Brief Facts: The Respondent-Gangavaram Port Limited (GPL) developed a green-field, ultra-modern, all-weather sea-port near Gangavaram Village in Visakhapatnam District in the State of Andhra Pradesh. This sea-port commenced operations in the year 2009. The Respondent intended to expand its facilities in the Port with respect to Bulk Material Handling Systems. This included Engineering, Design, Procurement of Materials, Manufacturing, Supply, Erection, Testing and Commissioning of Bulk Material Handling Systems, as well as all other associated works and integration of the same with the existing coal handling systems etc. For this purpose, on 08.08.2011, Gangavaram Port Limited invited a tender/bid. In response to the aforementioned tender dated 08.08.2011, the Spanish Company-Duro Felguera Plantas Industrials S.A. (since merged with the petitioner) along with its Indian subsidiary-M/s. Felguera Gruas India Private Limited (FGI) submitted a Single Bid/Tender-Original Package No.4 Tender Document on 15.11.2011. This included the Commercial Bid and the Technical Bid. After post-bid negotiations, the petitioner Duro Felguera and its subsidiary (FGI) were considered by GPL and Duro Felguera and FGI were selected as "the Contractors" for the work.

3. Clarifications/Addendum No.1 to 4 (in the descending order) issued by the Employer to the Original Package 4 Tender Document.

4. The Original Package 4 Tender Document issued by the Employer.

5. Final Technical Bid submitted by the Contractors in response to the Original Package 4 Tender Document.

The parties undertake to keep this MoU as strictly confidential."

30. Contention of GPL is that Memorandum of Understanding (dated 11.08.2012) collectively covers all the five Packages and MoU shall prevail over the arbitration clauses contained in five different Packages. In this regard, reliance was placed upon sub-section (5) of Section 7 of the Act to contend that since reference is made to Original Package No.4 TD in MoU, arbitration clause 20.6 must be deemed to have become part of MoU. In support of their contention, learned Senior Counsel Mr. Mukul Rohatgi and Mr. Raju Ramchandran appearing for GPL, placed reliance upon Chloro Controls India Private Ltd. v. Severn Trent Water Purification Inc. and Others (2013) 1 SCC 641.

(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."

35. Considering the MoU, in light of the above ratio, as pointed out earlier, in the MoU, Original Package No.4 Tender Document is merely referred only to have more clarity on technical and execution related matters and the parties agreed that the works shall be carried out as per the priority of the documents indicated thereon. Mere reference to Original Package No.4 Tender Document in the sequence of priority of documents (as serial No.4) indicates that the documents Original Package No. 4 TD containing arbitration clause was not intended to be incorporated in its entirety but only to have clarity in priority of the documents in execution of the work. Be it noted that Original Package No.4 TD occurs as Serial No.4 in sequence, after three other documents viz..., "(i) Annexure 1 to the Letter of Award issued for Package No. 4 Contract; and (ii) Annexure III to the Letter of Award issued for Packages No. 4, 6, 7, 8 and 9 contracts; and (iii) Clarifications/Addendums No.1 to 4 (in the descending order) issued by the Employer to the Original Package No. 4 Tender Document."

1. Annexure I to the Letter of Award issued for Package 4 Contract.

2. Annexure III to the Letter of Award issued for Package 4, 6, 7, 8 and 9 contracts.

 3. Clarifications/ Addendum No. 1 to 4 (in the descending order) issued by the Employer to the Original Package 4 Tender Document.

4. The Original Package 4 Tender Document issued by the employer.

5. Financial Technical Bid submitted by the contractors in response to the Original Package 4 Tender Document.” (Emphasis supplied)