Brijesh Kumar, J. - (1.) This petition under 11 of the Arbitration and Conciliation Act, 1996 (for short "the Act") has come up before me on being designated for appointing an Arbitrar, by the Honble the Chief Justice of India.
(2.) Learned Senior Counsel appearing on behalf of the respondent raised an objection that there is no concluded contract between the parties, hence no Arbitration agreement as well. It is also emphasised that no agreement has been executed by the parties. That being the position, there is no occasion for the petitioner move the petition for appointment of an Arbitrar. It has also been indicated that the letter of intent (LOI) as issued, was cancelled by the respondent by means of a letter dated 04.06.2002, since the bank guarantee furnished was a conditional bank guarantee and not unconditional as per stipulation. It is contended that though the Arbitrar is competent decide any dispute regarding existence or validity of the agreement but prima facie there must be some agreement on the basis of which Arbitration clause may be invoked. In absence of any such prima facie material or evidence of an agreement, the provisions of11(6) cannot be invoked. In support of its contention that there must be an agreement between the parties, reliance has been placed on U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., (1996) 2 SCR 386 and India Meters Ltd. v. Punjab SEB, (1993) 1 SCC 230 , that there must be consensus ad idem between the parties for there being any valid Arbitration clause.
(3.) Learned counsel appearing for the petitioner had submitted that in response a global tender the petitioner had tendered its bid which was found be the lowest and technically qualified, hence it was accepted by the respondent on 10.05.2002. LOI was also issued and the petitioner had then furnished the bank guarantee. The supply order was be issued within 7 days of furnishing of the bank guarantee but since no such order was issued the petitioner ultimately served a legal notice upon the respondent and called upon it appoint its Arbitrar by invoking the Arbitration clause which it failed do. It is submitted that it is not necessary have a formal agreement executed between the parties. It can be even by way of exchange of letters and other such communication. So far as the contract is concerned, he has referred the definition of "contract as provided in PRCL Standard Conditions of Contract (2000), according him which means and includes the invitation tender, instructions tenders, acceptance of tender etc. The petitioner has also denied the letter dated 04.06.2002 said be issued by the respondent cancelling LOI. It is indicated that this letter is an afterthought and not genuine. He has referred a decision Konkan Rly. Corporation Ltd. v. Rani Construction (P) Ltd., (2002) 1 SCR 728 , on the point that the Arbitrar is competent decide upon the validity and existence of an Arbitration agreement. In this connection, 16 of the Act has also been referred .;