R.S.MADAN, J. - (1.) THIS Regular Second Appeal No. 594 of 1992 is against the judgment and decree dated 23.1.1992 passed by the Additional District Judge, Chandigarh whereby he accepted the appeal and dismissed the suit of the plaintiff decreed by the trial Court with costs.
(2.) IN brief the facts of the case are that Ami Chand-plaintiff/appellant was carrying on business of transport and in course of business sent an offer to the respondent in response to respondent's invitation to tender by submitting a tender for performing service of loading, unloading and transport at Patraon, District Patiala. The said tender was open for acceptance upto 29.5.1979 and the tenders were to be opened on 30.4.1979 at 3.00 p.m. The tenders were opened on the due date in the presence of the plaintiff and others and as the plaintiff was the only tenderer, it was announced that the tender being sole tender will not be accepted and fresh tenders will be invited in due course. It was on this count that the plaintiff sent a letter on 7.5.1979 requesting the Senior Regional Manager, Food Corporation of India, Chandigarh to refund the amount of Rs. 5,000/-, which was sent by him along with tender, under Postal Certificate but to his utter surprise, the respondent-Food Corporation of India purported to accept the offer on 12.6.1979 when the offer was non-existent, firstly its validity period expired on 29.5.1979 and secondly, the tender was rejected on 30.4.1979 when on opening day there was only one tender and it was announced that only fresh tenders will be invited. The appellant thereafter visited the Food Corporation of India at Patiala and Chandigarh for the refund of the amount but to no effect. It is further the case of the appellant that without considering or realising the fact that the arbitration clause is included in the contract which was never concluded nor ever ripened into a contract, there in law and fact existed no arbitration agreement, still the Managing Director of Food Corporation of India purported to appoint Sh. P.S. Kaicker as Sole Arbitrator without notice or consent of the plaintiff. The said Arbitrator had resigned and Sh. P.C. Rao was appointed as the sole Arbitrary on 21.12.1982 without the consent or notice of the plaintiff under a non-existent agreement and the so- called appointment of above Arbitrators on 17.6.1982 and 21.12.1982 respectively was an invalid appointment under a non-existent agreement. The plaintiff thus prayed that the decree of non-existence and invalidity and ineffectiveness of the Arbitration Clause XIX and the determination be made under Section 33 Arbitration Act, 1940; that a decree for Rs. 5,000/- against Food Corporation of India be passed in favour of petitioner-plaintiff, pendente lite and future interest @ 18% per annum be also paid along with the cost of proceedings.
(3.) THE aforesaid suit was contested by the respondent-Food Corporation of India in terms of written statement dated 25.11.1987 whereby it has reiterated that the tender was accepted @ 67% above schedule of rate vide Food Corporation of India, Regional Officer, Telegram No. F-10-17/Patran/79 dated 12.6.1979 for two years and it was pleaded therein that the plaintiff is bound by the terms of the contract. Therefore, the earnest money could not be refunded. It was also pleaded therein that the Food Corporation of India was competent to appoint an Arbitrator. Mr. R. Lakshmanan was appointed in accordance with the terms and conditions of the contract and that the petition is not maintainable under Section 33 of the Arbitration Act. He thus prayed for the dismissal of the suit.;