DEBANGSU BASAK,J. - (1.) The petitioner has applied for appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.
(2.) Learned Senior Advocate appearing for the petitioner has submitted that, the petitioner participated in the notice inviting tender dated January 8, 2019 issued by the respondent. He has referred to the various terms and conditions of the notice inviting tender. He has submitted that, one of the terms and conditions of the notice inviting tender required deposit of earnest money by way of a bank guarantee. The petitioner had obtained a bank guarantee dated February 11, 2019 for the sum of Rs. 60 lakhs acting in terms of the notice inviting tender. According to him, upon the petitioner downloading the tender documents, and examining the same, the petitioner had found discrepancies in the bid documents. The petitioner had raised queries with regard to such discrepancies. The respondent had remained silent. The respondent had informed the petitioner that the petitioner was declared as the lowest bidder and awarded the contract. The petitioner had written to the Chairman of the respondent explaining the situation and requested him to intervene and not to invoke the bank guarantee. However, the respondent had invoked the bank guarantee.
(3.) Learned Senior Advocate appearing for the petitioner has referred to the arbitration agreement. He has submitted that, the arbitration agreement is contained in the general conditions of contract. He has drawn the attention of the Court to the definition of contract obtaining in the notice inviting tender. He has submitted that, the parties understood the contract to mean notice inviting tenders, conditions of tendering, tender format, general conditions of contract, supplementary conditions of contract, technical specifications, schedule of items, letter of acceptance, contract agreement and drawings and any other document which may be included at the time of signing of the contract agreement. He has referred to the Informations to the Bidders and submitted that, Clause 7 thereof required deposit of earnest money. Clause 7 had also reserved the right of the respondent to forfeit the earnest money deposit in case the bidder after obtaining of the tender, withdraws, impairs, derogates or revoke his tender within the validity period or extension thereof. He has referred to Clause (xvii) of the Terms and Conditions of the Tender which prescribes the validity period. He has also referred to Clause 8 of the Special Terms and Conditions which allows forfeiture of security deposit/earnest money. He has submitted that, the respondent could have invoked the bank guarantee and forfeited the proceeds of the bank guarantee only on the basis of the contract which contains an arbitration clause.;