- (1.) This arbitration application has been preferred under sub section 6 of Section 11 of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator.
(2.) Counsel for the applicant has submitted that the notice inviting tender was published. Tender was filled up by this applicant for the work in question i.e. construction of dwelling units. Tenders were opened and this applicant was found lowest bidder. Therefore, he was called vide letter at Annexure2 for negotiation of the price. After one round of negotiation was over, he was again called vide letter dated 10th July, 2009 at Annexure5 for negotiation. Thereafter, there was further negotiation between the parties and ultimately, 7 work orders were issued which is at Annexure7 series. It is further submitted by the counsel for the applicant that in due compliance of the work orders Performance Guarantee was also given of Rs.4,05,68,139/. Thereafter, draft agreement was also given by this applicant, which was signed by this applicant and sent to the Ranchi Municipal Corporation, but, for any reason whatsoever they have not signed the written agreement. No fault lies in the part of this applicant because the applicant has already signed the agreement. Thereafter, the agreement was cancelled by the Ranchi Municipal Corporation vide order at Annexure14. Thereafter, arbitration notice dated 26th February, 2010 (Annexure16) was given by this applicant as per clause 29 of PartIConditions of Contract contained, in Section 2Conditions of Contract, Evaluation Criteria & Formats to be filled in by the Bidder, as mentioned in Volume I under Clause 9 of Instruction to Bidders. These documents are annexed as Annexure18 to the compilation. No decision was taken by the Engineer of the Ranchi Municipal Corporation.
(3.) It is submitted by the counsel for the applicant that another notice was given on 10th June, 2010 (Annexure17) under the same clause no. 29 of the Conditions of Contract, but, no decision was taken by the Engineer of the Corporation nor appointment of Arbitrator was made for deciding the disputes between the parties. It is submitted by the counsel for the applicant that in fact Notice Inviting Tender was published, this applicant filled up the tender and found to be lowest one further negotiation was held between the parties and ultimately, 7 work orders were given. Draft agreement was also given by this applicant, which was signed by this applicant and Performance Bank Guarantee to the tune of Rs.4,05,68,139/was also given and accepted by the Ranchi Municipal Corporation and therefore, it cannot be said that there is no agreement of arbitration in existence at all. In fact, clause no. 29, as stated hereinabove, is an arbitration clause and the Engineer of the Ranchi Municipal Corporation has to decide the two notices and the disputes between the parties. Unnecessarily, the opposite party is taking time for appointment of an Arbitration and is raising the plea that there is no written agreement, in fact, under the Indian Contract Act, 1872, there is no need of any written agreement at all. Nonetheless, in the facts and circumstances of the present case, as stated hereinabove, under clause 29 there is a clause of arbitration in the notice inviting tender and in the conditions of tender.;