MAIN POINT
NIT forming part of contract making Indian laws both procedural and substantive applicable to the contract meaning thereby the Arbitration and Conciliation Act, 1996.

Judgment

Jagdish Singh Khehar, J.

1. In spite of the fact, that notice in this case was issued to the non-applicant, and the non-applicant-Daelim Industrial Company Limited, Korea, was duly served, yet none entered appearance on behalf of the non-applicant. Even though the matter came to be adjourned on some dates, on account of the absence of representation on behalf of the non-applicant, under the belief that some one or the other would enter appearance on its behalf. The hope entertained by this Court was belied, in the sense, that none has entered appearance on behalf of the non-applicant. Since the non-applicant was duly served, this Court is left with no other alternative, but to proceed with the case against the non-applicant, ex-parte.

2. We have heard learned counsel for the applicant.

3. The applicant ONGC Petro Additions Limited (hereinafter referred to as the 'OPaL') issued a notice inviting tenders, on 17.11.2009. By the aforesaid notice, the applicant solicited bids for construction of a dedicated high density Poly Ethylene plant, for its Dahej Petrochemical Complex. The pleadings in the present arbitration petition reveal, that the non-applicant-Daelim Industrial Company Limited, Korea, submitted its tender in response to the aforesaid notice on 17.11.2009. According to the learned counsel representing OpaL, in terms of the conditions depicted in the notice inviting tenders, the bid documents submitted by the tenderers could be accepted by the applicant finally, and such acceptance, would result in a concluded and binding contract. Insofar as the instant aspect of the matter is concerned, reference was made to Clause 26 of the notice inviting tender dated 17.11.2009. The same is being extracted hereunder:

“Clause 26 of the Instructions to the Bidder of the NIT dated 17.11.2009

26.0 Notification of Award:

26.1 Prior to the expiration of the period of Bid Validity, the company shall notify the successful Bidder in writing by registered letter or by fax or by telex that their tender has been accepted.

26.2 The above letter/ telex/ telefax of acceptance shall construe that the Contract shall be deemed to have been concluded. The Notification of Award shall constitute a binding contract between the successful bidder and the Company.” (emphasis is mine)

From a perusal of Clause 26.2, it clearly emerges, that the acceptance of the bid by the applicant, would by itself, conclude the contract. Thereupon, the consequential 'notification of award', would be treated as a binding contract between the bidder and the applicant. It also emerges from the pleadings, that having accepted the bid furnished by the non-applicant-Daelim Industrial Company Limited, Korea, the applicant issued a 'notification of award' on 6.1.2011. According to the learned counsel representing the applicant, the above notification demonstrates, the factum of a concluded contract between OPaL and the non-applicant; whereby Daelim Industrial Company Limited, Korea, became bound by the bid submitted by it, in response to the notice inviting tenders.

4. It is also necessary to reproduce herein, some other clauses depicted in the 'notification of award' dated 6.1.2011, which have a bearing on the determination of the present case. In this behalf, clauses 8 to 12 of the 'notification of award' are being extracted hereunder:

“8.0 M/S. Daelim Industrial Company Ltd. Shall be required to sign a formal Contract with Opal within 30 (thirty) days from the date of issue of this NOA. This NOA shall constitute binding Contract between M/S. Daelim Industrial Company Ltd and Opal and shall be subject to all terms and conditions of the Biddings Documents and other documents mentioned in Para 1.0 above.

The date of commencement of activities under this Contract shall be the date of issuance of this NOA.

9.0 All other terms and conditions shall be as per Bidding document No. MR/OW/MM/HDPE/15/2009, subsequent Amendments and Documents issued thereof as mentioned at Para 1.0 above.

10.0 Ki