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1998 Supreme(Guj) 607
Gujarat High Court
Judgename :D.C.Srivastava
GUJARAT STATE FERTILIZERS AND CHEMICALS LIMITED - Appellant
Versus
H.J.BAKER AND BROS. - Respondent
Civil Revision 45 of 1995
Decided On : 11/12/1998
Headnote:(a) Arbitration & Conciliation Act, 1996 - Sec. 2(a) - Arbitration agreement - Agreement in writing - Need not be signed by the parties to the agreement - All conditions should in an agreement is not essential to create valid arbitration agreement.
An Arbitration agreement must be in writing, but it need not be signed by the parties to the Agreement. It is further clear that formal agreement or that the terms should all be contained in one document, is not essential to create valid arbitration agreement. All that is necessary that from documents it must appear that the parties had agreed to submit present or future differences to Arbitration. Consequently if the Arbitration clause is contained in the tender notice which was accepted by the respondent No. 1 there came into existence Arbitration agreement within the meaning of Sec. 2 (a) of the Arbitration Act.
[Para 13]
(b) Civil Procedure Code, 1908 - Order 39 Rules 1-2 - Stay for arbitration proceedings - Application under Sec. 33 - Arbitration Act moved after dispute referred to the Arbitrator - Concluded contract between parties - Arbitration clause in agreement - No jurisdiction erred committed by the Trial Court in dismissing the application.
A written Arbitration agreement and as such there is no inherent lack of jurisdiction in the arbitrators to proceed with the matter. Accordingly the Trial Court has not committed any jurisdictional error in refusing to grant injunction restraining the respondent No. 1 from proceeding with the Arbitration proceeding before the arbitrator.
[Para 19]
( 1 ) ). This revision under Sec. 115 of the Code of civil Procedure has been filed by the Gujarat State Fertilizers Co. Ltd. against the order of the Court below dismissing an Application for interim injunction during the pendency of the Arbitration proceeding restraining the respondent no. 1 from proceeding with the Arbitration proceeding.
( 2 ) ). The facts giving rise to this revision are as under : the revisionist filed an application under Sec. 33 of the Arbitration Act for a declaration that there existed no arbitration Agreement between the parties. The parties had already referred their dispute to the Arbitrator. The Arbitrator entered upon the reference when Application under Sec. 33 of the Arbitration act was moved by the revisionist. Another Application under Order 39, Rules 1 and 2 C. P. C. was filed for restraining the respondent No. 1 from proceeding with arbitration proceeding.
( 3 ) ). The petitioner was in need of sulphur, hence invitation of tender for import of sulphur was floated on 14th July 1992. The respondent No. 1 submitted its offer on 27th July 1992. According to the petitioner the offer was not strictly in accordance with the terms of invitation of tender. The offer of the respondent no. 1 was accepted by the petitioner - revisionist with the statement that other terms and conditions stipulated in tender inquiry would be confirmed separately. According to the revisionist the counter offer submitted by the respondent No. 1 was not accepted by the revisionist, hence there was no concluded contract between the parties. In the absence of concluded contract and also in absence of arbitration clause in writing the Arbitrator acquired no jurisdiction to proceed with the matter.
( 4 ) ). The stand of the respondent was that there was a concluded contract. The difference was only in respect to shipping terms and all other conditions in the tender were accepted by the respondent No. 1. One of the conditions in the tender contained in Clause (20) incorporated arbitration agreement and since this was accepted by the respondent No. 1 there came into existence a valid written arbitration agreement. The dispute was entered upon by the arbitrator with the consent of the parties who joined the reference. It was, therefore, pleaded that the Arbitrator had jurisdiction to enter upon reference and no injunction could be granted.
( 5 ) ). Application for interim injunction was rejected by the Court below. Hence this revision.
( 6 ) ). Shri S. N. Shelat, learned Additional Advocate General for the revisionist and Shri S. H. Sanjanwala, learned Advocate for the respondent were heard at length.
( 7 ) ). An objection was taken by the learned Counsel for the respondent that the revisionist has not taken any case before the trial Court, that there is no concluded contract between the parties. It was also contended that the petitioner did not raise any plea before the trial Court that though there is concluded contract between-the parties there is no arbitration agreement between them regarding arbitration clause and as such these points which have been argued in this revision are beyond the scope of revisional jurisdiction under Section 115 C. P. C. I do not find much force in this objection. As mentioned earlier the two applications, one under Sec. 33 of the Arbitration Act and another under Order 39, Rules 1 and 2 C. P. C. were moved by the revisionist and proper reading of these applications would reveal that existence of the contract was challenged so also the existence of Arbitration Agreement. Since this objection was raised by the learned Counsel for the respondent after conclusion of argument of Shri Shelat, I do not propose to dismiss this revision on this technical ground.
( 8 ) ). The order of the trial Court has been examined. Only two points arise for determination in this revision. The first is whether prima facie there was concluded contract between the parties and the second is whether the
