Holding

A signed cyclostyled slip incorporating the Ministry’s arbitration clause overrides the printed clauses barring arbitration, so an arbitration agreement exists between the parties.

Summary

The appellants, contractors on the NH‑49 project, entered into contracts executed through the Kerala Public Works Department but governed by a Ministry of Surface Transport policy that required arbitration. The contracts contained printed clauses (clause 24, 24(a) of the Notice Inviting Tenders and clause 3 of the standard agreement) expressly barring arbitration, yet each contract also bore a cyclostyled slip signed by both parties stating that the arbitration clause prescribed by the Ministry would apply. The High Court held that, because of the printed bar, no arbitration agreement existed and dismissed the Section 11 petitions. On appeal, the Supreme Court applied principles of contract construction, holding that signed written amendments (the slip) prevail over earlier printed terms, and that the Ministry’s notification became part of the contract, thereby creating a valid arbitration agreement. The Court allowed the appeals, set aside the High Court’s order and remanded the matters for determination of other objections such as alleged full‑and‑final settlement.

Issues considered

Whether an arbitration agreement exists despite printed clauses expressly barring arbitration when a signed slip incorporating an arbitration clause is attached to the contract.
What is the hierarchy of contractual terms when a contract contains printed forms, cyclostyled amendments, typed additions and handwritten corrections.
Whether the Ministry of Surface Transport’s notification on arbitration becomes part of the contract between the parties.

Legislation cited

Arbitration and Conciliation Act, 1996s. 11

Subjects

arbitration agreementcontract constructionstandard formsNational Highway projectSection 11multi‑layered contractspublic works departmentarbitration clause precedence

Judgment

[2009] 10 S.C.R. 395

M.K. ABRAHAM & CO. A
v.
STATE OF KERALA & ANR.
(Civil Appeal No. 4151 of 2009)

JULY 7, 2009
B
[R.V. RAVEENDRAN AND J.M. PANCHAL, JJ.]

Atbitration and Conciliation Act, 1996- s. 11 -Award of
contract by Central Government, through State Public Works
Department - State Government barring arbitration in C
Government contracts entered by PWD- Arbitration
specifically barred by Notice Inviting Tender and by Standard
Form of Agreement - Central Government by a Notification
· making arbitration compulsory for the contract - A slip signed
by both the contracting parties, stating that ::irbitration clause D
3;w11 be applicable, attached to the contracts - He.Id:
Arbitration agreement exists between the parties in terms of
t.'le Notification issued by Central Government - The slip
attached to the contract will prevail over the printed conditions
-·• of the contract, barring arbitration - Contract. E
Contract - Rules of construction of contract - Explained.

Deeds and Documents - Agreements - Construction of
- Held: The best form of agreement is where all the relevant
clauses/forms are incorporated in a single document with F
several sections dealing with different aspects/subjects,
avoiding any overlapping.

In both the cases, appellants entered into
agreements separately in respect of the project of G
National Highway-49, which was executed by the Ministry
of Surface Transport, Government of India through the
Pub.He Works Department ef the State. The Ministry of
Surface Transport, by a communication dated 28.9.1994
395 H
396 SUPREME COURT REPORTS [2009] 10 S.C.R. ...
A informed all the States dealing with the National Highway
Project, that a standard contract clause prescribing the
procedure to be followed for appointment of arbitrators
was finalized by the Ministry. The communication
instructed them to incorporate the said clause in the
B bidding conditions, and to ensure that the said arbitration
clause was compulsorily made a part of bidding
conditions. In view of the said communication, a slip,
stating that arbitration clause as per the letter of the
Ministry shall be applicable, signed by both the ~rties,
c was attached to the respective contracts ot'the
appellants.

The appellants' pe~itions u/s. 11 of Arbitration and
Conciliation Act, 1996, for appointm2nt of Arbitrators for
deciding the disputes between the parties, were
D dismissed by the designate of Chief Justice of High
Court, holding that having regard to specific bar against
arbitration contained in clause 24 and 24 (a) of 'Notice
Inviting tenders for Works' and Clause (3) of standard
form of agreement, there could not be any reference to
E arbitration. The designated also held th'at the
(Communication dated 28.9.1994) of the Ministry of
Surface Transport was not accepted by the State it
cannot be said to have become part of the contract Writ
petition against the order was dismissed as not
F maintainable. Hence the present appeals against the
order of the Designate of the Chief Justice if India.

Allowing the appeals, the Court

HELD: 1.1 The State Government took a decision in
G or about 1986 to delete the provision for arbitration clause
in PWD contracts. As a consequence, the standard form
of 'Notices inviting Tenders for Works' [clauses 24 and
24(a)] and the standard form of Agreement (clause 3)
contain specific printed conditions which bar arbitration.
H Further the preamble to the standard form of Agreement
M.K. ABRAHAM & CO. v. STATE OF KERALA & 397
ANR.
.t
also clearly states "whereas the contractor has also A
signed the copy of the Madras Detailed Standard
Specifications (MOSS) excluding clause 73 and other
clauses relating to arbitration contained therein ...... "
(Para 8] [407-0-E]
B

..
1.2. There is no doubt that if the contract contained
a provision specifically barring arbitration, there can be
+ no reference to arbitration. But the position is different
where the standard format of the State PWD is used with
modifications in regard to construction contracts of
another department which has taken a policy decision to
c
have a provision for arbitration compulsorily in all its
contracts, and in view of it, the arbitration clause is made
a part of the contract by a further addition to the standard
form of Agreement. [Para 9] [407-G-H; 408-A]
"" 1.3. The State Government, by its G.O. (MS). No. 68/
D

88/PWD dated 19.11.1988 clarified, while barring
arbitration in regard to PWD contracts, that if any work
is financed by an agency which requires a provision for
~. arbitration, then a provision for arbitration may be E
provided in the agreements relating to such works. The
present cases are concerned, not with regular PWD
.~
~-
contracts, but contracts relating to another agency, that
--<
~ is the National Highway Project, entered by Project
Director (S.E.), National Highway (ADB) Project Circle. The F
said National Highway Projects has special provision
relating to arbitrations which does not find a place in the
State PWD contracts. In such ·a situation, merely because
the standard forms of PWD were used for entering into
contracts, or because the contracts were executed G
-1' through PW Department of the State Government, it
cannot be contended that special provisions applicable
~
to National Highway Projects specifically added to the
contract should be ignored. [Para 9] [408-A-D]

1.4. If a contract consists of a printed form with H
398 SUPREME COURT REPORTS [2009] 10 S.C.R.
-
A cyclostyled amendments, typed additions and deletions
and handwritten corrections, an endeavour shall be made
to give effect to all the provisions. However, in the event
of apparent or irreconcilable inconsistency, the following
rules of construction will normally apply : (i) The
B cyclostyled amendments will prevail over the printed
terms; (ii) The type-written additions will prevail over the
printed terms and cyclostyled amendments; (iii) Hand
written corrections will prevail over the printed terms,
cyclostyled amendments and typed written additions.
c [Para 10] [408-E-H]
1.5. The above rules have evolved from the maxim of
construction that "written, stamped or typed additions,
when inconsistent with the printed terms, would normally
prevail over the printed terms" and proceeds on the
-
D assumption that the printed form contained the original
' ..
terms, and changes thereto were incorporated by the
cyclostyled amendments, followed by changes by type-
written additions and lastly the hand written additions.
The logical explanation for such assumption is this: The
E printed form contains standardized terms to suit all
contracts and situations. It is not drafted with reference
to the special features of a specific contract. When such
a standard form is used with reference to a specific
contract, it becomes necessary to modify the standard/
F general terms by making additions/alterations/deletions,
to provide for the special features of that contract. This
is done either by way of an attachment of an annexure
to the standard printed form, incorporating the changes,
or by carrying out the required additions/alterations/
G deletions in the standard form itself. Such additions/
alterations/deletions are done by typing/stamping/hand. \ <

[Para 10] [409-A-D]

Robertson v. French [1803-13] All ER Rep.350 -
referred to.
H
M.K. ABRAHAM & CO. v. STATE OF KERALA & 399
ANR.
_,_ 1.6. Another parallel principle that is equally relevant A
is that where the contract has several annexures/
attachments, prepared at different points of time, unless
a contrary intention is apparent, the latter in point of time
would normally prevail over the earlier in point of time.
[Para 10] (409-H; 410-A] B

1.7. A cyclostyled slip signed by both parties
containing the words "arbitration clause as per Ministry
of Surface Transport's letter No. RW/NH-34041/3/94-00-
111 dated 28.9.1994 will be applicable" is attached to the
printed articles of agreement. By applying the well settled C
principles relating to construction of contract the
following position will emerge: (i) the terms of the articles
of agreement will prevail over the terms of Notice inviting
Tenders for Works and (ii) the term contained in the
cyclostyled attachment to the printed form of articles of D
agreement will prevail ov£" the terms of the printed
articles of agreement. Consequently, the contents of the
attachment slip to the printed form of Articles of
Agreement providing for arbitration will prevail over the
bar on arbitration contained in the Notice inviting Tenders E
for Works and the articles of agreement. [Para 11] (410-
D-G]

1.8. The contract terms and conditions will have to
be gathered from the Articles of Agreement, Notice F
Inviting Tenders for works, conditions of contract, Madras
Detailed Standard Specifications, Special Conditions and
Additional Special Conditions. [Para 12] [411-A-B)

1.9. The use of multi-layered agreements, with
several printed annexures, each with cyclostyled G
amendments, typed and hand written additions and
deletions lead to confusion, uncertainty, delays in
execution, apart from giving rise to avoidable disputes.
Having a contract with different annexures dealing with
the same issues with various attachments, in H
400 SUPREME COURT REPORTS [2009] 10 S.C.R.

A construction contracts (and some times insurance
contracts) is a nightmare to anyone wanting to
understand, implement or enforce them. Complicating
contracts with several annexures and attachments with
inconsistent, irrelevant, superseded or redundant
8 provisions results in creating a lush dispute generating
field. It helps greedy and unscrupulous contractors to
make bloated imaginary claims. It enables rule-minded or
corrupt officers to play havoc with honest and bonafide
contractors. The best form of agreement is where all the
C relevant clauses/terms are incorporated in a single
document with several sections dealing with different
aspects/subjects, avoiding any overlapping. The
vagueness and confusion give unwarranted discretion
and freedom to officers, leading to corruption and
nepotism. Clear, simple and straight forward agreement
D is the need of the hour. [Para 13] [411-E-H]

1.10. Where the form of PWD barring arbitration is
used in respect of National Highways Contracts, which
has a policy of having arbitrations to settle disputes, a
E slip signed by both the parties is attached to the standard
form of agreement stipulating that the arbitration clause
will be applicable, the said slip will prevail over the printed
conditions that there can be no arbitration. Thus there is
an arbitration agreement between the parties, in terms of
F the standard arbitration clause prescribed by the Ministry
of Surface Transport, Government of India. [Para 14] [413-
B-D]

2. It is evident from the record that the respondents,
apart from contending that there was no arbitration
G agreement at all, had also contended that the appellants
had given full and final settlement receipt with a no claim
undertaking in regard to the respective contract and
therefore no dispute much less arbitral disputes can
exist. On the other hand, appellants had contended that
H
'
M.K. ABRAHAM & CO. v. STATE OF KERALA & 401
ANR.
such certificates have been obtained by coercion and A
pressure. Whether no claim certificate were obtained by
coercion or by applying pressure is a question of fact that
will have to be considered in the proceedings under
Section 11 of the Act. The High Court did not examine the
objection of the respondents that there was a full and final B
settlement and that consequently there is no arbitral
dispute the matter was therefore remanded to the High
Court. [Para 15] [413-E-H; 414-A]

C~se Law Reference:
c
1803-13 All ER 350 Referred to Para 10

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4151 of 2009.
I I
From the Judgment/Order dated 14.12.2005 in Writ D
Petition (Civil) No. 17013 of 200-"-R and dated 19.12.2003 in
AR No. 17 of 2003 of the High Court of Kerala at Ernakulam.

WITH
E
C.A. No. 4155 of 2009.

L.N. Rao, John Mathew and Rajeev George for the
... I.
Appellants .
- R. Sathish for the Respondent. F
The Judgment of the Court was delivered by

R.V. RAVEENDRAN, J. 1. Delay condoned as appellants
were pursuing the remedy by way of writ petition till 14.12.2005.
Leave granted. G
-)
FACTS (M.K. ABRAHAM & CO.)

2. A section of the work relating to NH-49 was awarded
to the appellant under letter of acceptance dated 1.12.1999
issued by the second respondent [Project Director (SE), H
402 SUPREME COURT REPORTS [2009] 10 S.C.R.

A National Highway (ADB}, Circle Edappally, Cochin]. A formal
contract ag~eement was executed by them on the same day.
. ~

By letter dated 9.10.2001, the appellant-contractor called upon
the Executive Engineer, National Highways (Roads) Division
to pay certain amounts as compensation for the losses caused
B on various counts. The Executive Engineer <lenied the claim by
a reply sent in December, 2001 contending that there was a
full and final settlement of the claims by paying the amounts due
under the final bill. Being dissatisfied with the said rejection, ~ I

the appellant by notice dated 1.4.2002 called upon the Executive
c Engineer to refer the disputes in regard to its claims
aggregating to Rs.42,26,432/58 to arbitration. As there was no
response, the appellant by letter dated 26.8.2002 nominated
his arbitrator and called upon the second respondent to

D
nominate the department's arbitrator in terms of the c,ontract
so that the Director-General (Road Development), Ministry of
Surface & Transport, could nominate the Chairman - Arbitrator.
.\

The second respondent failed to comply. Therefore, the
appellant by letter dated 28.10.2002 requested the Director-
General to appoint the arbitrator on behalf of the employer as
also the Chairman of the Arbitration Committee. As the
E Director-General also failed to comply, the appellant filed an
application dated 9.4.2003 under section 11 of the Arbitration
& Conciliation Act, 1996 (for short 'the Act'). The designate of
the Chief Justice dismissed the application by order dated
J ..
19.12.2003.
F
FACTS (VIJAY CONSTRUCTIONS)

3. A section of the work relating to NH-49 was awarded
to the appellant under letter of acceptance dated 7.9.2000
issued by the second respondent. A formal contract agreement
G
was executed on 26.9.2000 between them. The work was
~-
completed on 30.4.2001. According to Appellant, the Executive
Engineer informed him that unless it gave a no claim certificate,
even the admitted dues would not be released. Under such
coercion, it gave such a certificate on 23.1.2002, so that it can
H
M.K. ABRAHAM & CO. v. STATE OF KERALA & 403
ANR. [R.V. RAVEENDRAN, J.]

~ receive at least the admitted amounts. Immediately on receiving A

-- the admitted dues, the appellant claims to have informed the
respondents by letter dated 2.2.2002 that it signed the no claim
undertaking under coercion and therefore, it had no legal effect.
It also called upon the respondent to redress its grievances and
claims. As there was no response, the appellant by notice B
dated 19.8.2002 called upon the Executive Engineer, who was
the "Engineer" under the contract to give his decision on its
~
.,, claims, in terms of the contract. As the "Engineer" failed to do
so within 60 days, the appellant wrote to the Director-General
(Road Development), Ministry of Surface & Transport on c
26.10.2002, to appoint a sole Arbitrator to adjudicate upon the
disputes. The appellant filed a petition under section 11 of the
Arbitration & Conciliation Act, 1996 (for short 'the Act')
contending that the contract between the parties provides for
settlement of disputes by arbitration and that in spite of D
I _.
appellant taking necessary pre-arbitration steps in terms of the
arbitration clause, there was no compliance. The designate of
the Chief Justice dismissed the application by order dated
19.12.2003.

COMMON ISSUE E

4. In both cases, the appellants contend that there is an
.. arbitration agreement in their contracts dated 1.12.1999 and
26.9.2000. They submitted that each was entrusted a section
cc
of the project "National Highway 49 - Mathura Cochin Road" F
which was executed by the Ministry of Surface Transport,
Government of India through the respective State Public Works
Department. The Ministry of Surface Transport, (3pvernment of
India, by communication dated 28.9.1994 inforry{ed all the State
Public Works Departments and all Chief Engineers in all States G
dealing with National Highways, that a standard contract clause
-~ prescribing the procedure to be followed for appointment of
arbitrators was finalized by the Ministry and enclosed a copy
of the arbitration provision and with instructions to incorporate
the said clause in the bidqing conditions for the National
. H
' /
404 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Highway works and to ensure that the said arbitration clause
was compulsorily made a part of the bidding conditions in the
respective States. The relevant portions of the 'contract clause
for inclusion in the bidding conditions for wholly domestic funded
..
NH works' enclosed to the Ministry's letter dated 28.9.1994
B reads thus:

"2. Arbitration

All disputes or differences in respect of which the decision,
if any, of the Engineer has not become binding as
c aforesaid and amicable settlement has not been reached,
shall, on the initiative of either party, be referred to the
adjudication. The sole Arbitrator for claims upto Rs.5.00
lakhs shall be appointed by the State Chief Engineer. Such
appointed Arbitrator shall be a person not below the rank
D of Executive Engineer and not connected with the contract. j \

The claims above Rs.5.00 lakhs and upto Rs.25.00 lakhs
shall be settled by a sole arbitrator to be nominated by the
Director General (Road Development), Ministry of Surface
Transport, Government of India, New Delhi. A copy of the
E order shall be supplied to both the parties. The claims of
more than Rs.25.00 lakhs shall be referred to the
adjudication of a Committee of three arbitrators. The
Committee shall be a composed of one arbitrator to be
nominated by the Employer, one to be nominated by the
F Contractor and the third, who will also act as the Chairman
of the Committee, to be nominated by the Director General
(Road Development}, Ministry of Surface Transport (Roads
Wing); Gpvernment of India, New Delhi. If either of the
parties abstain or fail to appoint his arbitrator, within 60
days after receipt of notice for the appointment of such
G
arbitrator, then the Director-General (Road Development),
Ministry of Surface Transport (Roads Wing), Government
of India, shall also appoint such arbitrator(s). A certified
copy of the appointment made by the Director General

H
M.K. ABRAHAM & CO. v. STATE OF KERALA & 405
ANR. [R.V. RAVEENDRAN, J.]
.. -l
(Road Development), Ministry of Surface Transport (Roads A
Wing), Government of India, shall be furnished to both
parties. The decision about the appointment of the
arbitrators by the Ministry of Surface Transport shall be final
and binding on both the parties. Any person appointed as
Arbitrator shall not be ccinnected with the work. B

Save as otherwise provided in the Contract, the Arbitration
;; .- shall be conducted in accordance with the provisions of
the Indian Arbitration Act 1940 or any statutory
modifications or enactment thereof and shall be held at
such place and time in India as the arbitrator or the
c
Committee of Arbitrators may determine. The decision of
the Arbitrator(s) shall be final and binding as may be
determined by the Arbitrator(s)."
-
<
-\
In view of the said communication, a slip signed by both parties D
was attached to the respective contracts of the appellants. The
attachment slip reads thus:

"Arbitration Clause as per Ministry of Surface Transport's
letter No.RW/NH-34041/3/94-00-111 dated 28.9.94 will be
E
applicable."

The contractors contend that the contracts entered by the
"' respondents, contain a provision for arbitration.

5. The respondents contend that there was no provision F
for arbitration as it was specifically excluded, relying upon·
clauses 24 and 24(a) of the "Notice Inviting Tenders for Works"
and clause (3) in the prfhted standard form of Agreement
executed between the parties extracted below:
• I

G
"Clauses 24 and 24(a) of Notice Inviting Tender tor Works
- ,I

24. Arbitration shall not be a means of settlement of dispute
or claim arising out of the contract relating to the work.
(G.O.Ms.No.10/86/PW & T dated 27.10.1986)
--t H
406 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 24(a). All disputes and differences arising out of the ~ •
contract that may be executed in pursuance of this
notification shall be settled only by the Civil Court in whose ...
jurisdiction the work covered by the contract is situated or
in whose jurisdiction the contract was entered into in case
B the works extends to th£ ; Jrisdiction of more than one
Court. (G.O.Ms.53/88/PW & T dated 30.9.1988)

Clause (3) of standard form of Agreement •
(3) The parties to this contract agreed to undertake the
c condition that arbitration shall not be a means of settlement
of disputes or claim or anything on account of this contract."

6. The designate of the Chief Justice of the High Court held
that having regard to the specific bar against arbitration
D contained in clauses 24 and clause 24(a) of the 'Notice inviting I -
Tenders for Works' and clause (3) of the standard form of
Agreement, there cannot be any reference to arbitration. The
Court also rejected the claim of the contractors that there is a
provision for arbitration by holding :

E "The notification relied on by the applicant has not been
accepted by the respondents and it had not become part
of the contract. The file did not disclose the acceptance
...
of any such notification."

F The appellants challenged the orders of the designate of the
Chief Justice holding that there was no arbitration agreement,
in writ petitions which were dismissed by a common order
dated 14.12.2005 as not maintainable. Thereafter, the
appellants have challenged the orders of the designate of the
Chief Justice in these' appeals by special leave contending that
G
the High Court ignored the relevant attachment to the contract ~ .
which incorporated the arbitration clause by special reference.

7. The common question that arises for consideration in
these appeals is whether there is an arbitration agreement
H .,.....
_,;f""'"'
M.K. ABRAHAM & CO. v. STATE OF KERALA & 407
ANR. [RV RAVEENDRAN, J.]
between the parties. A

THE CONTRACT DOCUMENT

8. To decide the issue, it is necessary to refer to and
understand the evolution of the contract document. In Kerala,
in regard to the construction contracts, the Public Works B
Department, enters into a short 'contract agreement' to serve
as a preamble to which are_annexed a standard printed form
of Articles of Agreement, the conditions of contract, notice
inviting tender for works, special conditions, and Madras
Detailed Standard Specifications (MOSS for short). All these C
attachments are printed forms with added amendments in
cyclostyled forms. In addition there will be other annexures
including tender schedule, plans, additional special conditions
etc.
D
8.1. Clause 73 of the MOSS contained a provision for
arbitration. The State Government took a decision in or about
1986 to delete the provision for arbitration clause in PWD
contracts. As a consequence, the standard form of 'Notices
inviting Tenders for Works' [clauses 24 and 24(a)] and the E
standard form of Agreement (clause 3) contain specific printed
conditions which bar arbitration. Further the preamble to the
standard form of Agreement also clearly states "whereas the
contractor has also signed the copy of the Madras Detailed
Standard Specifications excluding clause 73 and other clauses
relating to arbitration contained therein ...... "
F

9. If the contract was a contract entered into by the Public
Works Department contract of the State Government,
necessarily the said bar against arbitration would operate.
There is no doubt that if the contract contained a provision G
specifically barring arbitration, there can be no reference to
arbitration. But the. position is different where the standard
format of the State PWD is used with modifications in regard
to construction contracts of another department which has taken
H
408 SUPREME COURT REPORTS (2009] 10 S.C.R.

A a policy decision to have a provision for arbitration compulsorily
in all its contracts, and in view of it, the arbitration clause is
made a part of the contract by a further addition to the standard
form of Agreement. In fact Government of Kerala by its G.O.
(MS). No. 68/88/PWD dated 19.11.1988 clarified, while barring
B arbitration in regard to PWD contracts, that if any work is
financed by an agency which requires a provision for arbitration,
then a provision for arbitration may be provided in the
agreements relating to such works. In these cases, we are
concerned, not with regular PWD contracts, but contracts
c relating to another agency, that is the National Highway Project,
entered by Project Director (S.E.), National Highway (ADB)
Project Circle. The said National Highway Projects has special
provision relating to arbitrations which does not find a place in
the Kerala PWD contracts. In such a situation, merely because
D the standard forms of PWD were used for entering into
contracts, or because the contracts were executed through PW
Department of the State Government, it cannot be contended
that special provisions applicable to National Highway Projects
specifically added to the contract should be ignored.

E 10. If a contract consists of a printed form with cyclostyled
amendments, typed additions and deletions and handwritten
corrections, an endeavour shall be made to give effect to all
the provisions. However, in the event of apparent or
.
irreconcilable inconsistency, the following rules of construction
F will normally apply :

(i) The cyclostyled amendments will prevail over the
printed terms;

(ii) The type-written additions will prevail over the
G printed terms and cyclostyled amendments;

(iii) Hand written corrections will prevail over the printed
terms, cyclostyled amendments and typed written
additions.
H
M.K. ABRAHAM & CO. v. STATE OF KERALA & 409
ANR. [R.V. RAVEENDRAN, J.]
The above rules have evolved from the well known maxim of A
construction that "written, stamped or typed additions, when
inconsistent with the printed terms, would normally prevail over
the printed terms" and proceeds on the assumption that the
printed form contained the original terms, and changes thereto
were incorporated by the cyclostyled amendments, followed by B
changes by type-written additions and lastly the hand written
additions. The logical explanation for such assumption is this:
The printed form contains standardized terms to suit all
contracts and situations. It is not drafted with reference to the
special features of a specific contract. When such a standard c
form is used with reference to a specific contract, it becomes
necessary to modify the standard/general terms by making
additions/alterations/deletions, to provide for the special
features of that contract. This is done either by way of an
attachment of an annexure to the standard printed form,
0
incorporating the changes, or by carrying out the required
additions/alterations/deletions in the standard form itself. Such
additions/alterations/deletions are done by typing/stamping/
hand. We may refer to the following oft-quoted enunciation of
the legal position by Lord Ellenborough in Roberlson v. French E
[1803-13] All ER Rep.350 with reference to printed form of
contract with hand-written additions :

"....... that the words super added in writing are entitled,
nevertheless, if there should be any reasonable doubt on
the sense and meaning of the whole, to have a greater F
effect attributed to them than to the printed words,
inasmuch as the written words are the immediate language
and terms selected by the parties themselves for the
expression of their meaning and the printed words are a
general formula adapted equally to ttieir case and that of G
all other contracting parties on similar occasions and
subjects".

Another parallel principle that is equally relevant is that where
the contract has several annexures/attachments, prepared at H
410 SUPREME COURT REPORTS [2009] 10 S.C.R.

A different points of time, unless a contrary intention is apparent,
the latter in point of time would normally prevail over the earlier
in point of time.

11. In this case, as noticed above, the contract consists
of a type-written contract agreement between appellant and
8
second respondent (which does not contain any terms and
conditions, but which .nerely states that the contract is for
execution of the described work as per the accompanying
Articles of agreement, plan, specification and conditions of
contract approved by the Project Director (S.E.), National
C Highway (ADB), Circle Adappally, Cochin) with several printed
forms with cyclostyled additions as annexures and hand written
corrections. The printed form of Articles of agreement has an
attachment slip. The contract does not contain any hand written
terms in regard to arbitration. The contract has printed clauses
D barring arbitration (clauses 24 and 24(a) of the Notice inviting
Tenders for Works and a preamble clause and clause 3 in the
articles of agreement). A cyclostyled slip signed by both parties
containing the words "arbitration clause as per Ministry of
Surface Transport's letter No. RW/NH-34041/3/94-DO·lll dated
E 28.9.1994 will be applicable" is attached to the printed articles
of agreement. By applying the well settled principles relating
to construction of contract the following position will emerge:
(i) the terms of the articles of agreement will prevail over the
terms of Notice inviting Tenders for Works and (ii) the term
F contained in the cyclostyled attachment to the printed form of
articles of agreement will prevail over the terms of the printed
articles of agreement. Consequently, the contents of the
attachment slip to the printed form of Articles of Agreement
providing for arbitration will prevail over the bar on arbitration
G contained in the Notice inviting Tenders for Works and the
articles of agreement. As a result, it has to be held that there
is a provision for arbitration in regard to the disputes between
the respective appellant and the respondents.

12. In this case, the entire confusion arose on account of
H
M.K. ABRAH<\M & CO. v. STATE OF KERALA & 411
ANR. [R.V. RAVEENDRAN, J.]
using outdated printed forms and also adding deleting and A
modifying the terms and conditions contained in several distinct
documents which are made annexures to the formal agreement.
The contract terms and conditions will have to be gathered from
the Articles of Agreement, notice inviting tenders for works,
conditions of contract, Madras Detailed Standard B
Specifications, Special Conditions and Additional Special
Conditions. There are printed forms, cyclostyled amendments
and attachments and typed agreement. In fact there is a typed
'contract agreement' and printed 'Articles of Agreement' with
blanks filled in hand. Standard forms which contain provisions c
for several contingencies, most of which are inapplicable or
redundant were used, without making any effort to edit the
various documents and have a consolidated Agreement. For
example, we fail to understand why State of Kerala in 1999-
2000 should use Madras Detailed Standard Specification of D
1930 vintage. Nor are we able to understand why parties should
execute a contract agreement and articles of agreement on the
same day. Be that as it may.

GENERAL OBSREVATIONS
E
13. The use of multi-layered agreements, with several
printed annexures, each with cyclostyled amendments, typed
and hand written additions and deletions lead to confusion,
uncertainty, delays in executi6n and apart from giving rise to
avoidable disputes. Having a contract with different annexures F
dealing with the same issues with various attachments. in
construction contracts (and some times insurance contracts) is
a nightmare to anyone wanting to understand, implement or
enforce them. Complicating contracts with several annexures
and attachments with inconsistent, irrelevant, superseded or G
redundant provisions results in creating a lush dispute
generating field. It helps greedy and unscrupulous contractors
to make bloated imaginary claims. It enables Rule-Minded or
corrupt officers to play havoc with honest and bonafide
contractors. The best form of agreement is where all the H
412 SUPREME COURT REPORTS [2009] 10 S.C.R.

A relevant clauses/terms are incorporated in a single document
with several sections dealing with different aspects/subjects,
avoiding any overlapping. The difficulty arises if the same
subject is dealt with in more than one section or in more than
one document. Confusion and difficulties also arise using
B certain forms with conditions which were finalized and printed
at an earlier point of time and using other sets of conditions
which are finalized and printed at different subsequent points
of time, without taking care to specify which of the earlier terms
were deleted or modified. For example in this case, we have
c the 1959 terms that is Madras Detailed Standard Specifications
-
forming part of the contract, and we have the general conditions
of the Kerala Government which were modified from time to
time in particular 1986 and we have the standard instructions
of the Ministry of Surface Transport of 1994 which were
applicable to National Highway Projects. The result is several
0
years after completing of the work, parties are still trying to find
out what the agreed terms and conditions are and whether there
is a specified dispute resolution process by way of arbitration.
On account of such confusion, several efficient and honest
E contractors stay away from participating in such tenders. The
vagueness and confusion give unwarranted discretion and
freedom to officers, leading to corruption and nepotism. Clear,
simple and straight forward agreement is the need of the hour.
Tens of thousands of engineering contracts are being entered
all over the country everyday in regard to infrastructural works,
F without the necessary clarity, leading to avoidable disputes and
considerable strain on the exchequer. With use of computers,
with user friendly editing procedures with cut and paste
facilities, it is fervently hoped that contract forms appropriate
to the work would be prepared, to avoid redundancy, confusion,
G vagueness and inconsistency and to increase efficiency,
expedition, reduction of disputes and saving of funds. Be that
as it may.

H
M.K. ABRAHAM & CO. v. STATE OF KERALA & 413
ANR. [R.V. RAVEENDRAN, J.]

CONCLUSION A

14. Where a contract consisted of standard terms finalized
in 1959 and further terms which were finalized subsequently,
necessarily the terms that were finalized subsequent to 1959
terms, would prevail. That is why if it is a PWD contract, even B
though the MOSS which is made a part of the contract,
specifically provided for arbitration in clause 73, the same is
held to be inapplicable, having regard to the subsequent
~

" additions incorporated by the Government of Kerala in 1986
and 1988 barring arbitration. Where the said form of PWD
barring arbitration is used in respect of National Highways
c
Contracts, which has a policy of having arbitrations to settle
disputes, a slip signed by both the parties is attached to the
standard form of agreement stipulating that the arbitration
clause will be applicable. It is clear that the said slip will prevail
~ * over the printed conditions that there can be no arbitration. We D
therefore conclude that there is an arbitration agreement
between the parties in terms of the standard arbitration clause
prescribed by the Ministry of Surface Transport, Government
of India.
E
15. We find from the record that the respondents, apart
from contending that there was no arbitration agreement at all,
.... 4 had also contended that the appellants had given full and final
settlement receipt with a no claim undertaking in regard to the
respective contract and therefore no dispute much less arbitral F
disputes can exist. On the other hand, appellants had
contended that such certificates have been obtained by
coercion and pressure. Whether no claim certificate were
obtained by coercion or by applying pressure is a question of
fact that will have to be considered in the proceedings under
..,.__.
.
G
Section 11 of the Act. The High Court while deciding the
petitions under Section 11, considered only the question
whether there is an arbitration agreement or not. As it held that
there was no arbitration agreement, it did not examine the
H
414 SUPREME COURT REPORTS [2009] 10 S.C.R.

A further objection of the respondents that there was a full and
final settlement and consequently there is no arbitral dispute.
In the absence of any material on that issue, we are not in a
position to decide the same.

16. We therefore allow these appeals and set aside the
8
order of the High Court, holding that there is an arbitration
agreement between the parties in both appeals. We remand
the matter to the High Court to consider and decide the other 't r
objections raised by the respondents in accordance with law.

C K.K.T. Appeals allowed.