IMPORTANT POINT
Validity and applicability of arbitration clause in the NIT, impact of subsequent agreements with independent arbitration clauses, and the scope of the NIT's arbitration clause.

JUDGMENT :

1. The learned Advocate for the petitioner contends that there was an arbitration clause in the Notice Inviting Tender (NIT) floated by the respondent authorities, a copy of which was signed and returned by the petitioner, thereby expressing its agreement to the same. Subsequently, a dispute arose with regard to some of the tank trucks offered by the petitioner in terms of the tender, which were refused to be accepted by the respondent authorities. Litigation ensued and the matter came up before a co-ordinate Bench, where, in the year 2021, an order was passed directing that the said remaining trucks should also be accepted by the respondent authorities. Pursuant to such order, in the year 2021, transporter agreements were entered into between the parties with regard to the said remaining trucks.

2. However, in the interregnum, that is, between the years 2018 and 2021, certain disputes arose between the parties. The petitioner, inter alia, claims compensation, damages and other reliefs on the cause of action sought to be made out in respect of such disputes, raised by the petitioner within the conspectus of the arbitration clause of the NIT.

3. As such, the petitioner invoked the arbitration clause of the NIT and not those contained in the subsequent agreements. However, there being no consensus between the parties with regard to appointment of arbitrator, the present application under Section 11 has been taken out.

4. The learned Advocate for the petitioner places reliance on Unissi (India) Private Limited v. Post Graduate Institute of Medical Education and Research reported at (2009) 1 SCC 107. In the said case, a two-Judge Bench of the Supreme Court, under similar circumstances as the case at hand, had observed that although no formal agreement was executed between the parties, the tender documents indicated certain conditions of contract contained in the arbitration clause. Accordingly, it was held that there was an arbitration clause and the matter was required to be referred to arbitration.

5. Learned Advocate next cites another judgment of the Hon'ble Supreme Court in Rajesh Verma v. Ashwani Kumar Khanna reported at (2016) 12 SCC 678, primarily for the proposition that jurisdiction of the High Court under Section 11 of the Arbitration & Conciliation Act, 1996 is very limited and confined to the examine as to whether there is an arbitration agreement between the contracting parties and, if so, whether any dispute has arisen between them out of such agreement which may call for appointment of Arbitrator to decide such disputes.

6. While refuting the contentions of petitioner, the learned Advocate for the respondents argues, by placing reliance on a judgment in South Eastern Coalfields Limited and Others v. S. Kumar’s Associates AKM (JV) reported at (2021) 9 SCC 161, by another two-Judges’ Bench of the Supreme Court, that the clauses in the NIT did not comprise of a concluded contract for the purpose of referring the matter to arbitration on the basis of such a clause in the NIT.

7. It is further argued that in the affidavit-in-opposition of the respondents, it has been clearly mentioned without there being any denial by the petitioner that in April 2021, separate transportation agreements in respect of the remaining eleven tank trucks was executed.

8. Hence, after the execution of such agreements, which contain independent arbitration clauses, the petitioner cannot resile and rely on the arbitration clause purportedly contained in the NIT for the purpose of invoking the arbitration clause of the NIT post-contract.

9. Insofar as the first contention of the respondents is concerned, the same cannot be accepted in the eye of law in view of the ratio laid down in Unissi India Private Limited (supra). In exactly similar circumstances, the Supreme Court had observed in the said report that the arbitration agreement did exist and, therefore, the matter should be referred to arbitration for decision. It was further obse