A contract with an arbitration clause rolls as it were, two contracts into one. If there has not been a contract at all, there has never been as part of it an agreement to arbitrate; the greater includes the less.

( 1 ) THIS is an application under Section 33 of the Indian Arbitration Act to determine the existence of an arbitration agreement.

( 2 ) THE petitioner is a contractor who submitted on 18-7-1952 a tender for the supply of sal and teakwood of twenty different specifications for the supply of which tenders were invited by the Directorate of Supply. The Directorate of Supply purported to accept the tender submitted by the petitioner on 13-11-1952 and an acceptance note was issued on the same date. The petitioner contends that there was no concluded contract on the so-called acceptance of tender on 13-11-1952, firstly because the tender was open to acceptance by the Directorate of Supply till 31-10-1952 and could not be accepted on 13-11-1952 and secondly, because the terms contained in the tender are different from the terms issued in the A/t dated 13-11-1952 and hence the parties were not "consensus ed idem". The respondents contend that the A/t dated 13-11-1952 evidences a concluded contract and that the petitioner has committed a breach thereof and as such is liable in damages to the extent of Rs. 1,69,803/8/ -. The present notice has been taken out by the petitioner on 1-3-1954 to determine the existence of the arbitration agreement. The arbitration agreement is the usual clause in all Government contracts.

( 3 ) MR. G. P. Kar the learned counsel appearing for the respondent submitted that the petitioner has challenged the contract itself and not merely the arbitration clause. The allegations in the petition attacks the whole contract and not merely the arbitration clause. The Court is invited to declare that there is no concluded contract between the parties. These prayers can only be granted in a declaratory suit. The petition, therefore, should be dismissed and the petitioner should be relegated to a properly constituted suit for declaration and cancellation of the A/t under Sections 42 and 39 of the Specific Relief Act. Mr. Kar has cited a decision or the Appeal Court in the case of State of Bombay v. Adamjee Hajee Dawood and Co. , in support of his argument that the question should be agitated in a suit and not in an application under Section 33 of the Arbitration Act. In the cited case the plaintiff instituted a suit claiming a declaration that a contract which contained an arbitration clause was not made between the parties and is not binding on it. The defence inter alia was that having regard to Sections 32 and 33 of the Arbitration Act such a suit does not He. The Appeal Court held that the suit was maintainable and that Section 32 of the Indian Arbitration Act was no bar. Banerjee J. in his judgment at page 148 observed as follows :"i cannot take the view that Section 32 contemplates the case of suits challenging the validity of a contract because it contains an arbitration clause. If the intention of the legislature were that all contracts containing an arbitration clause should come within the purview of Sections 32 and 33 the legislature would have said so in appropriate words. In my view, Sections 32 and 33 have a very limited application, namely, where the existence or validity or an 'arbitration agreement' (and not the contract containing the arbitration agreement) is challenged. Assume for a moment that Sections 32 and 33, Arbitration Act, have repealed Section 39, Specific Relief Act, which section of the Specific Relief Act will apply in such cases to contracts which do not contain an arbitration clause? We cannot take the view either that Section 39, Specific Relief Act, has been partially repealed, that is to say, repealed so far as it relates to contracts containing an arbitration clause. To hold that Section 39 Specific Relief Act has been wholly or partially repealed will lead to absurd results. "harries, C. J. in supporting the view of Banerjee J. made the following observation at page 149 :"i entirely agree with my brother Banerjee that Sections 32 and 33 on their true construc