( 1 ) THE petitioner company which provides information technology service was an unsuccessful tenderer for computer networking connectivity in respect of a tender floated by the respondent Punjab National Bank on 4th June, 2004 and consequently its technical bid was rejected. This led to the filing of the present application under Section 9 of the Arbitration Act, 1996 (hereinafter referred to as the Act) by which interim orders under Section 9 of the Act are sought on the basis of the applicability of the Arbitration clause contained in clause 24 of the terms of tender.

( 2 ) THE issue involved in the present case is whether before the signing of agreement an arbitration clause contained in the tender documents can be availed of by a unsuccessful tenderer. The learned counsel for the parties have relied upon clauses 22 and 24 of the tender terms which read as follows :

"22. SIGNING OF CONTRACT the successful bidder (s) shall be required to enter into a rate contract with PNB, within 7 days of the award of the tender or within such extended period as may be specified by Bank on the basis of the Tender Document, the Tender of the successful bidder, the letter of acceptance and such other terms and conditions as may be determined by the Bank to be necessary for the due performance of the work in accordance with the Bid and the acceptance thereof, with terms and conditions shall be contained in a Memorandum of Understanding to be signed at the time of execution of the Form of Contract. The rate contract will be valid upto 31. 03. 2005, unless terminated by the Bank before that date. Bank reserves the right to extend the validity of the rate approval contract beyond 31st March, 2005, after re-negotiations with the approved vendor.

24. GOVERNING LAWS AND DISPUTES all disputes or differences whatsoever arising between the parties out of or in relation to the construction, meaning and operation or effect of these Tender Documents or breach thereof shall be settled amicably. If, however, the parties are not able to solve them amicably, the same shall be settled by arbitration in accordance with the applicable Indian Laws, and the award made in pursuance thereof shall be binding on the parties. The vendor shall continue work under the Contract during the arbitration proceedings unless otherwise directed in writing by the Bank or unless the matter is such that the work cannot possibly by continued until the decision of the arbitrator or the umpire, as the case may be, is obtained. The venue of the arbitration shall be Delhi. "

( 3 ) THE learned counsel for the petitioner has relied upon the first part of paragraph 24 to contend that this is a broad enough clause so as to cover even disputes prior to award of the tender including the refusal of tender. In particular he has referred to the phrase "all disputes or differences whatsoever out of or in relation to the construction meaning and operation or effect of these tender documents". The counsel for the respondent has, however, pointed out that the second paragraph of Clause 24 demonstrated that the arbitration proceedings are only available after the award of contract. He also relied upon Clause 22 which specifies signing of the contract and was a pre-requisite for invoking clause 24. He has also relied upon Section 7 of the Act which provide for an agreement in writing which according to him does not exist.

( 4 ) THE relevant statutory provision which governs the present dispute in Section 7 of the 1996 Act which defines an arbitration agreement and reads as follows:-

"7. Arbitration agreement-- (1) In this Part, "arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contraft or in the form of a separate agreement. (3) An ar