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High Court Of Calcutta
SABYASACHI MUKHERJI
DAS CONSULTANTS PVT.LTD. - Appellant
Versus
NATIONAL MINERAL DEVELOPMENT CORPORATION LTD. - Respondent
Matter 908 Of 1980
Decided On : 11/21/1980
ARBITRATION - Existence of Arbitration Agreement - Agreement Transformed into Writing - Acceptance of Proposal - Pecuniary Jurisdiction - Territorial Jurisdiction - Part of Cause of Action Arising Within Jurisdiction.
Fact of the Case:
The petitioner, a consulting firm, sought a determination of the existence of an arbitration agreement with the respondent, a public sector undertaking. The petitioner claimed that the parties had agreed to an arbitration clause in a draft agreement, while the respondent denied the existence of a concluded arbitration agreement.
Finding of the Court:
The court found that the parties had reached an agreement on the terms of the arbitration clause and that the agreement was transformed into writing. The court also found that the petitioner had accepted the proposal contained in the draft agreement and that there was no formal revocation of the proposal. The court further found that the claim in the case exceeded Rs. 50,000/- and that part of the cause of action had arisen within the jurisdiction of the court.
Issues: 1. Whether there was an arbitration agreement between the parties. 2. Whether the court had pecuniary jurisdiction to entertain the application. 3. Whether the court had territorial jurisdiction to entertain the application.
Ratio Decidendi: 1. An arbitration agreement does not require signatures of both parties; it is sufficient if the agreement to submit present or future differences to arbitration is reduced to writing. 2. Acceptance of a proposal is complete unless the revocation of the proposal is received by the acceptor before the acceptance. 3. An application under Section 20 of the Arbitration Act can be filed in a court if part of the cause of action has arisen within the jurisdiction of the court, and leave under Clause 12 of the Letters Patent is not necessary for such filing.
Final Decision: The court held that there was an arbitration agreement between the parties, that the court had pecuniary and territorial jurisdiction to entertain the application, and that the arbitration agreement covered the disputes relating to the work done by reason of the letter of indent as amended and the disputes relating to the work done after the arbitration agreement came into existence.
( 1 ) THIS is an application under Section 33 of the Arbitration Act, 1940 for determination of the existence of the arbitration agreement mentioned in paragraph 2 of the petition. This peti-tion is made by a firm, formerly known as Atkins Das Private Limited now known as Das Consultants Private Limited. Subsequent to the filing of this petition, originally there was an affidavit affirmed on behalf of the petitioner on 4th July, 1980, by one Ram Krishna Majurndar wherein it was stated that the subject matter of the claim was over Rupees 50,000/ -. There was a further supplementary affidavit on behalf of the petitioner affirmed by the same deponent Ram Krishna Majumdar, wherein it was stated that the Court should also determine the effect of the arbitration agreement and declare that the instant arbitration agreement covered the disputes relating to work done in pursuance of the letter of indent dated 28th April, 1972 as amended on the 24th May, 1972 as also the disputes relating to work after the arbitration agreement came into existence. It appears that the petitioner, which was formerly known as Atkins Das Private Ltd. , was appointed as a Consultant for detailed engineering civil and structural works connected with the ore dressing plants of Donimali I. O. Project of the respondent and also to advise the respondent from time to time as also to provide overall supervision during actual construction for proper and efficient execution of the work, inter alia, on the terms and conditions as contained therein. This is contained in the letter dated 20th April (28th April?) 1972, which is annexed to the petition. On 24th May, 1972, the respondent addressed a letter to the petitioner and agreed to the amendments as incorpo-rated therein in the letter of indent dated 20th April (28th April?) 1972. On 8th February, 1973, the respondent agreed that the contract under reference might be exempted from submission oi bank guarantee against advance payment, as a special case, and as such, the provision regarding the bank guarantee as contained in that letter of indent dated 21st April (28th April?) 1972 should stand modified. On 13th/19th February, 1976, the draft agreement which was forwarded to the petitioner, after a protracted negotiation, was sent back to it by the petitioner along with the amendments incorporated in the original draft, as sent by the respondent. On 20th March, 1976 in their letter, the respondent, inter alia, stated that six copies of the agreement were left with it. It is material in view of the contentions rais-ed in this case to set out some relevant portions of the said communications which were addressed by the respondent to the petitioner on 20th March, 1976 on the subject "consultancy agreement for detailed engineering of civil and structural works for Donimali Project". The letter stated as follows:--"dear Sirs, vide your letter No. 785/01/sdg-AKD/g dated February 13/18, 1976, six copies of the agreement were left with us. The following discrepancies were noticed in these copies compared to earlier draft already agreed upon by you: 1. Liquidated damages: In Article 6. 1 "as per this agreement" has been added.
( 2 ) REGARDING payments and terms of payments Article 7. 8 has been added : This addition is not acceptable to us.
( 3 ) REGARDING cost of works we had intimated to you in our telex dated December 12, 1975, that the definition of cost of works, as mentioned in the letter of indent has to be followed. Since there is no definition of cost of Civil Works, in the letter of indent, no definition can be given in this agreement. As such, Article VIII of cost of works has to be deleted.
( 4 ) IN Article 10. 1 under Indemnity Charges payable the words "of work and rectification and" have been replaced by 'or' in the 6th line. This change has been restored. We have got the above amendments done to the draft agreement and prepared copies of the same. Five copies of the agreement in the
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