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15. On the above backdrop, the case of the applicants is that the parties have agreed to resolve their disputes through arbitration as per clause 20.5 of the GCC which binds the parties to settle all the disputes and differences by arbitration to be held in Mumbai and thus, the disputes be referred to arbitration by appointing an arbitral tribunal on the respondent refusing to do so.

Respondent's Case:

16. The respondent has opposed this application, by filing a counter affidavit, inter-alia contending that the applicants are not entitled to the reliefs of an arbitral tribunal to be appointed, principally on the ground 9 carapl 89-19 that the applicants have not complied with the prerequisite condition for invocation of arbitration.

"12. Dealing specifically with the issue/Applicant's submissions relating to the invocation of arbitration and the Applicants attempt to appoint arbitrators in the aforesaid paragraphs 5F to 5Q, 6 to 8 it is denied that the present petition is maintainable as:

10 carapl 89-19 a. The Applicant has not complied with clause 20.1 of the GCC. This is a condition precedent for invocation of arbitration.

13. The pre-arbitration procedure under Clause 20.1 is mandatory and if the prerequisites of Sub Clause 20.1 are not followed, the cause of action for invocation of arbitration under Sub Clauses 20.3 and 20.4 does not arise. In the present case, the procedure prescribed by Sub Clause 20.1 11 carapl 89-19 has not been followed, despite the Respondent having put the Applicant No.1 to notice of the same vide letters dated 25 March, 2015, 2 December 2015, 28 December 2015, and 8 September, 2016 which have all been annexed by the Applicant to their Application. There is no concept of deemed compliance of Clause 20.1.

Ref: 1.LTSE letter No.MM00/MMR-O-2317-L dated 09.08.16

2.LBG letter No.LBG/Monorail/LTSE/Contract/10064-16 dated 20.08.2016 Dear Sir, Please refer to your above letter requesting the Employer to nominate a panel of five Arbitrators in connection with your commercial claim of 'cost overrun due to extended stay in the Project.' In this regard, we draw your kind attention to the above referred letter of Employer's representative/PMC wherein it is stated that it may be pertinent to note that the contract provides for a specific procedure which is mandatory to be followed prior to invocation of arbitration. Accordingly, invocation of arbitration can only arise upon completion of the procedure laid down in Clauses 20.1 and 20.2 of the GCC. Since you have failed to comply with the prerequisites for referring the matter to arbitration, by not following the procedure laid down under the Contract, your claim does not qualify for arbitration and the Employer may, if so advised, defend the same.