- (1.) The petitioner has applied under Section 11(6) of the Arbitration and Conciliation Act, 1996 with a request for necessary measures to be taken for constituting an arbitral tribunal to adjudicate upon the disputes covered by the arbitration agreement that the petitioner sets up. The respondent has denied the existence of the arbitration agreement.
(2.) There is no dispute that following a notice inviting tender and the petitioner's offer thereupon, a work order was issued in favour of the petitioner for handling and despatch of iron ore fines from Thakurani/Barbil siding to the ports of Paradip, Haldia and Gopalpur by rail and by road. The work included port handling, stacking and stevedoring operations. The work order contemplated a formal agreement being executed. The work order was to remain valid for the period upto December, 2008 with a provision for extension thereof based on the performance of the petitioner. The performance was to be reviewed every three months. Clause 17 of the work order dated January 22, 2008 provided as follows: A written Agreement will be executed between OSL and OMDC within 7 (seven) days of issuance of the Work Order recording the fact of conclusion of contract between OSL & OMDC."
(3.) It is not in dispute that a draft agreement was forwarded by the respondent to the petitioner on January 22, 2008 itself. The same will be evident from a letter dated February 8, 2008 issued by the respondent, a copy whereof appears as annexure "R-1" to the respondent's affidavit-in-opposition. Under cover of such letter, a copy of the draft agreement was forwarded again with a request that it "may please be finalised immediately for execution in the stamp paper." The draft agreement contained the following, which the petitioner claims to be an arbitration clause: "ARBITRATION: In case of any conflict between the terms and conditions contained in the contract documents, the provisions contained herein shall prevail over those contained in the documents referred above. All disputes and differences of any kind whatsoever arising out of the Second Part shall referred to the Sole arbitrator namely of the First Part. On any reference the Learned Arbitrator will decide the dispute in accordance with the Arbitration and Conciliation Act, 1996. The decision and/or award of the arbitrators will be final and binding upon both the parties.";