2002 Supreme(Bom) 1308

IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
Skanska Cementation India Ltd. .... Petitioner.
Versus
Bajranglal Agarwal others.... Respondents.
Arbitration Petition Nos. 185 186 of 2002, decided on 13-12-2002.
Advocates appeared :
D.D. Madon with P.A. Kabadi i/b., Doijode Phaterphekar, for petitioners.
Anil Agarwal, for respondent No. 1.

Headnote:Arbitration and Conciliation Act, 1996 - Section 7 - Contract Act, Section 28 - Arbitration agreement. - Where invoices for purchase order containing arbitral clause was accepted and money paid under invoices without protest then contract between parties clearly contemplated a provision for arbitration.

       Arbitration and Conciliation Act, 1996 - Section 7 - Purchase order - Arbitration agreement - Goods sent under delivery challan - Acceptance of without, protest - Delivery challan containing condition for reference of dispute to arbitration - Contract clearly contemplated a provision for arbitration. - The purchase order by itself would not be a contract between the parties. It is only on accepting the terms of the purchase order would a contract come into being. Clause I of the purchase order does provide that execution of this order shall be deemed to be acceptance of the conditions stated hereinabove. Clause II of the purchase order provided that the respondents could draw attention of the company to conditions which they find unacceptable. By the terms contained in the delivery challan the petitioner company is deemed to have been informed that the condition that their decision was final was not acceptable and that the dispute if any should be referred to arbitration of Bharat Chamber of Commerce. As such even though the purchase order was received, the respondents did not accept the purchase order and drew the attention of the company that the term of resolving the dispute was not acceptable by sending the goods under delivery challan which contained clauses 4 and 7. Clause 4 made it clear, that it is in the nature of counter-offer by the respondents to the petitioners for accepting the goods. In other words the respondents had not agreed to clause 10 of the purchase order. Even otherwise considering clause 11 the respondent had specifically informed the petitioners that they were sending the goods under the delivery challan with a different condition. The petitioners accepted the goods under the challan without protest. As such pursuant to the counter-offer or counter- proposal the terms of the delivery stood amended even considering clause 11 of the purchase order and accordingly the contract apart from the terms and conditions of the purchase order which were agreed by the parties would contain additional terms under which the goods were despatched and accepted by the petitioners. The respondents also sent invoices. Under the invoices again there was an arbitral clause. The invoices were accepted, moneys paid under the invoices without protest. According to Court, therefore, the contract between the parties clearly contemplated a provision for arbitration.

       Contract Act, 1872 - - Section 28 - Void agreement - Purchase order - Bars remedy of having recourse to Court of Law - In view of Section 28 of Act it is void. - The purchase order which bars the remedy of party of having recourse to Court of Law by leaving the matter to decision of the company would normally if an issue was raised would have been held to be void considering Section 28 of the Indian Contract Act.

       Arbitration and Conciliation Act, 1996 - Section 34 - Powers of Tribunal - Arbitral award - Setting-aside of - Parties to arbitration not permitted to engage lawyers - Discretion of Tribunal - No denial of an opportunity - Discretion exercised cannot be interfered with. - The exercise of discretion surely cannot be a matter for interference by the Courts under Section 34 by contending that the petitioners were denied an opportunity. The decision to permit engagement of lawyers was within the discretion of the Tribunal. Both the parties had sought the opportunity of engaging lawyers. Both have been dealt with equally.

       Arbitration and Conciliation Act, 1996 - Sections 31(7) and 34(2) - Setting aside of arbitral award. - When parties chose a forum to get their disputes adjudicated, Courts, should be slow in setting aside awards on technicalities when there is a ground available under Section 34(2) of Act.

       Arbitration and Conciliation Act, 1996 - Section 19 - Procedure followed by Arbitral Tribunal. - Once parties had accepted procedure followed by Tribunal then that procedure would be of Arbitration Rules of Chamber.