The absence of a concluded contract precludes the invocation of arbitration under the Arbitration and Conciliation Act, affirming the need for absolute acceptance in contract formation.

JUDGMENT :

K.R. Mohapatra, J.

This appeal under Section 37 of the Arbitration Conciliation Act, 1996 (for short, the Arbitration Act’) has been filed assailing the order dated 18.10.2019 (Annexure-1) passed by learned District Judge, Ganjam, Berhampur in Arbitration Petition No.4 of 2018, whereby he dismissed a petition filed by the present Appellant-Company under Section 9 of the Arbitration Act holding it to be not maintainable.

2. Short narration of facts necessary for proper adjudication of this appeal are that pursuant to a ‘Request for Proposal’ (RFP) by the Respondent - Berhampur Development Authority (BDA) for development of Integrated Commercial – cum - Residential Complex in Berhampur, the Appellant had participated in the bid and became the highest bidder having quoted an amount of Rs.9.40 crore. The project was decided to be undertaken on a Public Private Partnership (PPP) basis. Upon compliance of initial formalities and deposit of 25% of the bid amount, i.e., Rs.2.35 crore, the Respondent-BDA issued Letter of Intent (LOI) on 16.06.2008 in favour of the Appellant-Company requesting the Appellant to deposit the balance contractual bid amount within a period of 180 days and to execute the agreement. But, the Appellant could not deposit the balance contractual bid amount of Rs.7.05 crore within a stipulated period of 180 days. Hence, the LOI issued in favour of the Appellant was cancelled vide Order No.250/BeDA Berhampur dated 03.03.2015. Assailing the same, the Appellant filed W.P.(C) No.8653 of 2015 before this Court. This Court by order dated 11.05.2015, while issuing notice in the matter, passed the following interim order.

“The opposite parties shall not issue (sic) any work order to anybody until further orders, subject to the petitioners depositing of Rs.2.75 crores before the Registrar (Judicial) of this Court in shape of A/C payee bank draft within a period of two weeks hence. In the event, the petitioners will not pay the same within the time stipulated, this interim order will stand vacated.”

However, the Appellant could not deposit the said amount. Subsequently, the Appellant moved learned District Judge, Berhampur in Arbitration Case No.04 of 2018 under Section 9 of the Arbitration Act with the following prayer:-

“It is therefore prayed that your honour may graciously be pleased

a. To preserve the entire premises and necessary order in this regard be passed for its interim custody;

b. Injunct the opp. party from creating any third party interest over the schedule property and obstructing the entry of the petitioner or his representatives to the schedule premises;

c. Cost of the proceeding be awarded in favour of the petitioner;

d. Any other relief as deem fit and proper be awarded in favour of the petitioner.”

2.1 Along with the petition under Section 9 of the Arbitration Act, the Appellant had also filed an interim application praying inter alia to direct the parties to maintain status quo in respect of the property in question. Upon receipt of notice, the Respondent (opp. party therein) appeared and filed a petition on 18.09.2018 raising an issue with regard to maintainability of the petition under of the Arbitration Act. Both the petitions, namely, petition with regard to maintainability as well as injunction were heard and disposed of on 18.10.2019 by a common order under Annexure-1, which is under challenge in this appeal.

3. Mr. Bose, learned counsel for the Appellant submitted that the impugned order is an outcome of non-application of judicial mind. The Respondent, accepting the initial deposit of Rs.2.35 crore paid by the Appell