1 arbap15-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO.15 OF 2009 M/s.J.M. Mhatre ....Applicant V/s. South West Port Ltd. ....Respondent Ms.Shilpa Kapil for the Applicant. Ms.Ankita Singhania with Mr.Srivastava and Mr.Kuldeep Singh i/b D.H.Law Associates for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 9TH SEPTEMBER, 2010. P.C. :- 1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996. 2. The manner in which the work orders have been placed is unusual. The Respondent by a letter dated 23.5.2003 invited tenders. The Applicant submitted the tender. The tender documents and the letter accepting the Applicant’s tender did not contain an arbitration clause. 3. Four independent work orders were placed for diverse quantities of work. The amount payable under each work order was also different. The terms and conditions of the four work orders are also not identical. The four work orders are dated 12.12.2003, 4.5.2004, 8.6.2004 and 25.8.2004. The first work does not contain an arbitration clause. The three other work orders contain an arbitration clause. As stated earlier, the 2 arbap15-09 tender documents which may be considered to be incorporated in the agreement do not contain an arbitration clause. Thus arbitration agreements exist only in work order nos.2, 3 and 4 and not in work order no.1. The fact that the work order no.4 refers to work order no.1, makes no difference. The terms and conditions of work order no.4 have not been incorporated in work order no.1 either expressly or even impliedly. 4. In the circumstances, the parties can be compelled to refer the disputes and differences to arbitration only in respect of work order nos.2, 3 and 4. There is no arbitration agreement in respect of work order no.1. 5. Disputes and differences having arisen between the parties, the Applicant by a letter dated 22.2.2006 invoked the arbitration clause. Through inadvertence, the notice invokes the arbitration clauses in terms of clause 18 of the General Conditions which were not incorporated in the present case. It appears that the same may have been applicable in respect of another contract between the parties. 6. In the circumstances, the arbitration application is allowed by appointing Dr.Mr.Justice E.S. da Silva (Retd.) as a sole arbitrator in respect of the disputes and differences between the parties under work order nos. 2, 3 and 4. The application in respect of work order no.1 dated 12.12.2003 is rejected.