R.F.NARIMAN,J. - (1.) Leave granted.
(2.) The factual matrix in which the present matter arises is that the Respondent No.1 issued a Global Invitation of Request for Qualification (hereinafter referred to as "RFQ") in March, 2009 inviting applications from interested persons for the development of the 4th Container Terminal Project on Design, Build, Finance, Operate and Transfer Basis at Jawaharlal Nehru Port. The RFQ document of 02.03.2009 expressly contained a clause by which the bidder could be a Single Entity or a Consortium. On facts, the appellant and the Respondent No.2 before us together formed a Consortium with the appellant as the Lead Member, Technical Member and Financial Member of the Consortium. It may be pointed out at this stage that the appellant is a Company registered in Singapore, whereas Respondent No.2 is a Company registered in India.
(3.) Some of the salient features of the RFQ is that the RFQ itself, at the forefront, states by way of a Disclaimer that nothing in the RFQ will be construed to make the RFQ an Agreement between the parties. Whatever is stated in the RFQ Clauses would only be by way of information to a prospective bidder as to the work to be performed. The bid itself was in two stages - the first being at the stage of eligibility, and the second being at the stage of the Request for Proposal (hereinafter referred to as "RFP"). Since the Consortium between the appellant and the Respondent No.2 qualified in the first stage, they were entitled to be considered under an RFP document floated by the Respondent No.1 dated 07.06.2010. Under this document, what was made clear was, like the RFQ, that nothing in the RFP should be construed as forming an agreement between the parties. The only idea of the RFP was that the Consortium, in making its financial bid, would know what exactly was required of it during performance of an agreement to be entered into in future. What is interesting to note is that though there is no agreement at the stage of an elaborate bid process set out in a schedule to the RFP, yet, right until a Concession Agreement is to be signed between a Special Purpose Vehicle set up for the purpose by the Consortium and the Respondent No.1, the bid process will be governed by Indian law and the Courts at Mumbai shall have exclusive jurisdiction over the disputes that may arise under or in connection with the said process. Another important clause is that the Jawaharlal Nehru Port Trust (Respondent No. 1) can annul the bid process without assigning any reason right up to the stage that a Concession Agreement is actually entered into, as stated herein- before, between the Special Purpose Vehicle and the Respondent No.1. Equally, what is of great importance is a draft Concession Agreement, which forms part of the RFP document and is, therefore, deemed to be a part of the Consortium bid itself. This draft Concession Agreement contained an arbitration clause in the following terms: "19.1 Amicable Settlement If any dispute or difference or claims of any kind arises between the Concessioning Authority and the Concessionaire in connection with construction, interpretation or application of any terms and conditions or any matter or thing in any way connected with or in connection with or arising out of this Agreement or the rights, duties or liabilities of any Party under this Agreement, whether before or after the termination of this Agreement, then the parties shall meet together promptly, at the request of any Party, in an effort to resolve such dispute, difference or claim by discussion between them. xxx 19.3 Arbitration (a) Arbitrators Failing amicable settlement and/or settlement with the assistance of Expert appointed by the Parties by mutual consent, the dispute or differences or claims as the case may be, shall be finally settled by binding arbitration under the Arbitration and Conciliation Act, 1996. Unless the Parties mutually agree otherwise, within 30 (thirty) days of invocation of the arbitration as mentioned below, the rules of arbitration prescribed by the International Centre for Alternative Dispute Resolution, New Delhi shall apply to the arbitration. The arbitration shall be by a panel of three Arbitrators, one to be appointed by each party and the third, who shall act as presiding arbitrator, to be appointed by the two arbitrators appointed by the parties. The Arbitration shall be invoked by one party issuing to the other a notice in writing invoking the arbitration and appointing an arbitrator. Upon receipt of the notice, the other Party shall appoint the second Arbitrator. The two Arbitrators so appointed shall appoint the third Arbitrator who shall act as the 'Presiding Arbitrator'. If the other Party fails to appoint a second Arbitrator within 30 (thirty) days from the receipt of the request to do so, then the Arbitrator so appointed by the first party shall adjudicate the disputes as 'Sole Arbitrator'. (b) Place of Arbitration The place of arbitration shall be the headquarters of the Concessioning Authority in India. (c) English Language The request for arbitration, the answer to the request, the terms of reference, any written submissions, any orders and rulings shall be in English and, if oral hearings take place, English shall be the language to be used in the hearings. (d) Procedure The procedure to be followed within the arbitration, including appointment of arbitrator/arbitral tribunal, the rules of evidence which are to apply shall be in accordance with the Arbitration and Conciliation Act, 1996. (e) Enforcement of Award Any decision or award resulting from arbitration shall be final and binding upon the parties. The parties hereto agree that the arbitral award may be enforced against the parties to the arbitration proceeding or their assets wherever they may be found and that a judgment upon the arbitral award may be entered in any court having jurisdiction thereof. (f) Fees and Expenses The fees and expenses of the arbitrators and all other expenses of the arbitration shall be intially borne and paid equally by respective parties subject to determination by the arbitrators. The arbitrators may provide in the arbitral award for the reimbursement to the successful party of its costs and expenses in bringing or defending the arbitration claim, including legal fees and expenses incurred by the party. (g) Performance during Arbitration Pending the submission of and/or decision on a dispute, difference or claim or until the arbitral award is published, the parties shall continue to perform all of their obligations under this Agreement without prejudice to a final adjustment in accordance with such award.";