The main legal point established is that the existence of an Arbitration Agreement can be inferred from the correspondence and conduct of the parties, and it is not mandatory for the agreement to be signed by all parties.

JUDGMENT

Jyoti Singh, J. - Present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as an "Act") for appointment of a Sole Arbitrator for adjudication of the disputes between the parties.

2. Petitioner is in the business of providing Consultancy services for promotion of electrical supplies and installation, electric design and build, electrical testing and commissioning, power transfer and distribution project, EPC and Turnkey projects in various State Governments. Respondent operates in Key industrial, commercial and retail sectors with many projects in multi-story offices, hotels, super stores etc. and provides services of electrical supplies etc.

3. On 26.05.2014 an online tender with RFP identification number was invited by Chief Engineer, South Bihar Power Distribution Company Limited (SBPDCL) for appointment of implementing agency for execution of R-APDRP (Part-B) Scheme on turnkey basis, for strengthening, improvement and augmentation of distribution system capacity of 20 towns, in Patna and the date of online submission of tender was extended to 08.07.2014.

4. Respondent submitted its technical and financial bid and the various business understandings between the parties were recorded in an Agreement dated 07.07.2014. During the negotiations, according to the petitioner, it was conveyed to the petitioner that as per the terms of the Consultancy Agreement, if the contract is awarded to the respondent, then its Joint Venture, namely, Process Construction and Technical Services Private Limited (PCTSPL) will execute the project. On 10.07.2014 respondent submitted its technical and financial bids with respect to RFP No. 56/2014.

5. Respondent was declared L-1 bidder. It is the case of the petitioner that it had made substantial efforts under the Consultancy agreement to facilitate the respondent in getting the contract and respondent had made payment of Rs.75,000/-, accepting its liability for the consultancy services, rendered under the said Agreement.

6. Thereafter, two letters of Award, both dated 22.09.2014 were issued by SBPDCL in favour of the respondent. In terms of the Consultancy Agreement, petitioner raised an invoice dated 27.09.2014 for an amount of Rs. 25 lakhs plus service tax against which the respondent paid Rs. 25,59,000/-. The invoice was raised on PCTSPL because it had undertaken the execution of the project. An agreement was signed between the respondent and SBPDCL pursuant to the Letters of Award.

7. As per the Consultancy Agreement, petitioner had to raise a second invoice only upon advance of mobilization funds to the respondent/the Joint Venture, subject to tendering of Bank Guarantees to SBPDCL.

8. Petitioner states that it continuously followed up with the respondent to tender Bank Guarantee for functioning of the project and to enable the petitioner to raise the second invoice. However, the respondent did not furnish the Bank Guarantee due to which the mobilization funds were not advanced and the petitioner was not paid its consultancy fees.

9. Petitioner was subsequently requested by the respondent that instead of an invoice for Rs. one crore, an invoice for Rs.20/- lakhs plus service tax be raised for the present, which the petitioner did and the respondent paid Rs. 18 lakhs to the petitioner. After much follow-up, respondent made a further payment of an amount of Rs. 4,71,500/- only.

10. Petitioner further avers that a final invoice for balance payment of Rs. 5,54,14,318/- was raised on 01.07.2017 which was duly received by the respondent, but no payment was made thereafter and all attempts for amicable settlement also failed. Petitioner thereafter sent a demand notice dated 09.03.2018, in response to which the respondent on 22.03.2018 sought a copy of the Consultancy Agreement.

11. Petitioner invoked the Arbitration Agreement by a notice dated 26.04.2018 and nominated a sole arbitrator to adjudicate the disputes between the peti