An arbitration clause in a separate document can only be part of a contract if the reference is made in a written contract.

JUDGMENT

amit Bansal, J. - I.a. No. 6061/2021 (u/s 8 of arbitration & Conciliation act)

1. This application has been filed on behalf of the applicant/defendant (hereinafter 'defendant') under Section 8 of the arbitration and Conciliation act, 1996 (hereinafter 'the act') claiming that there exists an arbitration clause between the parties and therefore, the plaint be rejected and the parties be referred to arbitration.

2. Brief facts relevant for the purposes of deciding the present application are stated below:

i. The defendant, for the development and operation of Dulanga Coal Block, Odisha, issued a Request For Proposal (hereinafter 'RFP') dated 22nd January, 2016. The bid documents, inter alia, included Notice Inviting Tender, Instructions to Bidders (RFP documents) and Project agreement.

ii. The RFP documents, (Instructions to Bidder) under Chapter-12 titled as 'Information To Bidders', contains a Dispute Resolution Clause (Clause 12.16) in terms of which, any dispute between the parties has to be referred to arbitration. The said Clause 12.16 refers to the Dispute Resolution contained in the Project agreement.

iii. The Project agreement contains the elaborate Dispute Resolution Clause providing for arbitration.

iv. Pursuant to the aforesaid RFP, the non-applicant/plaintiff (hereinafter 'plaintiff') participated in the bidding process.

3. It is the case of the defendant that the plaintiff in support of its bid enclosed a false/forged certificate of the plaintiff having executed a project on behalf of Bharat Coking Coal Ltd. The defendant conducted an investigation pursuant to which it came to light that the certificate was not issued by Bharat Coking Coal Ltd. Therefore, acting in terms of Clause 12.47 of 'Information to Bidders', the defendant encashed the bid security of the plaintiff amounting to Rs.19,98,61,000/- vide invocation letter dated 8th May, 2017. Further, a Show Cause Notice dated 29th June, 2017 was issued to the plaintiff in terms of Clause 5.3 of the Banning Policy of the defendant, as to why the plaintiff should not be banned for a period of three years.

4. after considering the reply of the plaintiff, the competent authority of the defendant vide order dated 24th January, 2018 suspended the issuance of bidding documents to the plaintiff and directed that no award shall be made to the plaintiff for any future tenders of the defendant and its subsidiaries for a period of three years from 24th January, 2018.

5. an appeal against the said decision was filed by the plaintiff, which was rejected vide order dated 18th October, 2018.

6. By way of the present suit, the plaintiff has challenged the encashment of its bid security as well as the banning order dated 24th January, 2018.

7. It has been contended on behalf of the defendant that (i) there is a valid arbitration agreement between the parties contained in Clause 12.16 of the RFP which by way of reference incorporates the Dispute Resolution Clause of the Project agreement to be executed between the defendant and the successful bidder, which contains the arbitration clause; (ii) the RFP that was given to all bidders including the plaintiff, included the draft of the Project agreement; and (iii) therefore, the present suit is not maintainable and the parties should be referred to arbitration in terms of Section 8 of the act.

8. Counsel appearing on behalf of the plaintiff has contended that (i) the RFP does not constitute a contract between the parties; (ii) the RFP is a document seeking information on the technical and financial capacity of the interested bidders and gives details about the process of selection. In this regard, reliance is placed on Clause 1 of the RFP which is the Disclaimer Clause; (iii) Clause 3.1.37 of the RFP itself defines the Project agreement to be the agreement entered into between the defendant and the selected bidder and to be executed after issuance of Letter of acceptance; and (iv) the RFP contains a clause, being Clause 3.3, with regard t