Arbitration agreement validity is for the tribunal, not final section 11 adjudication; disputed tender clause must be referred.

At the section 11 referral stage under the Arbitration and Conciliation Act, contentious questions on the existence or validity of an arbitration agreement are not finally to be decided by the Chief Justice or his designate; those objections fall within the arbitral tribunal's jurisdiction under section 16. The Court also treated the dispute arising from the tender documents and exchanged correspondence as one that had to be referred to arbitration, because the incorporation of the arbitration clause itself was disputed. The refusal to refer the matter was set aside, and the case was remitted for constitution of the arbitral tribunal and reference of the dispute.

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Issues: (i) Whether the Chief Justice or his designate acting under section 11 of the Arbitration and Conciliation Act, 1996 could adjudicate upon the existence or validity of the arbitration agreement; (ii) Whether the dispute arising out of the tender documents and correspondence was required to be referred to arbitration, leaving questions about the arbitration agreement to the arbitral tribunal.

Issue (i): Whether the Chief Justice or his designate acting under section 11 of the Arbitration and Conciliation Act, 1996 could adjudicate upon the existence or validity of the arbitration agreement.

Analysis: The power under section 11 is administrative in nature. Questions as to whether an arbitration agreement exists, or whether correspondence and tender conditions amount to such an agreement, are contentious issues. Those issues are not meant to be finally decided at the stage of appointment by the Chief Justice or his designate. The arbitral tribunal has the authority under section 16 to rule on its own jurisdiction, including objections relating to the existence and validity of the arbitration agreement.

Conclusion: The Chief Justice or his designate could not finally adjudicate the existence or validity of the arbitration agreement under section 11.

Issue (ii): Whether the dispute arising out of the tender documents and correspondence was required to be referred to arbitration, leaving questions about the arbitration agreement to the arbitral tribunal.

Analysis: The dispute turned on whether the notice inviting tender, the accepted offer, and the exchanged correspondence incorporated the arbitration clause contained in the tender conditions. That was itself a dispute requiring reference to arbitration. In view of the settled law that the supervisory role at the referral stage is limited, the proper course was to constitute the arbitral tribunal and permit it to decide the objection under section 16.

Conclusion: The dispute had to be referred to arbitration and the arbitral tribunal was to decide the objection regarding the arbitration agreement.

Final Conclusion: The orders refusing reference were set aside and the matter was sent back for consideration limited to constitution of the arbitral tribunal and reference of the dispute in accordance with the arbitration clause.

Ratio Decidendi: At the stage of appointment or reference under section 11, contentious questions about the existence or validity of an arbitration agreement are ordinarily for the arbitral tribunal under section 16, not for final adjudication by the Chief Justice or his designate.

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