TaxTMI 
TaxTMI 
TaxTMI 
2007 (4) TMI 760
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....nection with or arising out of the contract, or the execution of the work that is (i) whether before its commencement or during the progress of the work or after its completion, (ii) and whether before or after the termination, abandonment or breach of the contract it shall in the first instance be referred to for being settled by the Executive Engineer in charge of the work at the time and he shall within a period of sixty days after being requested in writing by the contractor to do so, convey his decision to the contractor, and subject to arbitration as herein after provided, such decision in respect of every matter so referred, shall be final and binding upon the contractor. In case the work is already in progress, the contractor will proceed with the execution of the work on the receipt of the decision of the Execution Engineer-in-charge as aforesaid, with all due diligence whether he or Vice-Chancellor, M.D.U., Rohtak requires arbitration as hereinafter provided or not. If the Executive Engineer, in-charge of the work has conveyed his decision to the contractor and no claim to arbitration has been filed with him by the contractor within a period of sixty days from the receipt....
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....e. (5) The following matters shall not lie within the purview of arbitration: (a) Any dispute relating to the levy of compensation as liquidated damages which has already been referred to the Superintending Engineer and is being heard or/and has been finally decided by the Superintending Engineer in-charge of the work. (b) Any dispute in respect of substituted, altered, additional work/committed work/defective work referred by contractor for the decision of the Superintending Engineer, in-charge of the work if it is being heard or has already been decided by the said Superintending Engineer. (c) Any dispute regarding the scope of the work or its execution or suspension or abandonment has been referred by the contractor for the decision of the Vice- Chancellor, M.D.U., Rohtak and has been so decided finally by the Vice-Chancellor,M.D.U., Rohtak. (6) The independent claim of the party other than the one getting the arbitrator appointed, as also counter-claims of any party will be entertained by the arbitrator notwithstanding that the arbitrator had been appointed at the instance of the other party. (7) It is also a term of this arbitration agreement that where the party invokin....
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.... issues that can be brought before the arbitrator i.e. any matter that can be referred to arbitration shall not be brought before a civil court. The pendency of arbitration proceedings shall not disentitle the Vice-Chancellor,M.D.U., Rohtak to terminate the contract and make alternative arrangements for the completion of the work. (11) The arbitrator shall be deemed to have entered on the reference on the day he issues notices to the parties fixing the first date of hearing. The arbitrator may, from time to time, with the consent of the parties enlarge the initial time for making and publishing the award. (12) It is also a term of this arbitration agreement that subject to the stipulation herein mentioned, the arbitration proceedings shall be concluded in poor ordinance with the provisions of the Arbitration Act, 1940 or any other law in force for the time being. Obviously, this tender form was signed on behalf of respondent No. 1 when it was submitted to the appellant. It was dated 12.09.2003. 4. The tender so submitted by the respondent was accepted by the appellant. It was stated in the letter of acceptance, dated 22.11.2003, singed on behalf of the appellant: As approved b....
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....under Section 11 of the Arbitration and Reconciliation Act, 1996 (for short 'the Act') seeking the appointment of an arbitrator. After referring to the invitation for tenders, its submission of tender, and of its acceptance, the respondent also disclosed that no agreement was signed between the parties but asserted that the conditions mentioned in the tender form were made applicable. The respondent requested to the court to call upon the appellant to produce the original tender form submitted by the respondent. The appellant accepted the fact that the tender of the respondent had been accepted. But the appellant was not liable to pay any damages in view of Clause 13 of the tender conditions. No payment was to be made unless the contract agreement was signed. It also contended that the dispute that was sought to be raised by the respondent was outside Clause 25A of the tender conditions relied on by the respondent. 8. The District Judge, controlled as he then was, by the decision in Konkan Railway Corporation Ltd. and Anr. v. Rani Construction Pvt. Ltd. [2002]1SCR728 , appointed the Superintending Engineer as arbitrator by relying on Clause 25A of the tender conditions, le....
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....on in S.B.P. & Company (supra) is clear from paragraph 46 of that decision wherein prior orders and proceedings have been saved. Therefore, the only question for decision is whether the fact that the parties have not signed the contract containing the detailed specifications as contemplated by the letter of acceptance would preclude the respondent from seeking an arbitration by falling back on Clause 25A of the tender conditions quoted above. It is true that when parties during negotiations contemplate the execution of a formal agreement incorporating the terms of the bargain, so long as a formal agreement has not been entered into, it may be open to contend that there was no concluded contract between the parties. As against this, what is the position in a case where the tender submitted is accepted, its acceptance conveyed and the time for completing the work is stipulated to start from such acceptance, and the work was to commence on the basis of that acceptance but no payment was to be made until a formal contract was signed, is the first question that arises in this case. We think that in the circumstances, this is a question that must be left to be decided by the arbitrator, ....