PNP 1 ARP52-18.2.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO.52 OF 2010 M/s. Pushpagiri Constructions ..Petitioner. versus Maharashtra State Electricity Distribution Co. Ltd. ..Respondent. ..... Mr. Toni S. Sachdevani for the Petitioner. Ms. Shweta Jadhav i/b J. Shekhar & Co. for the Respondent. ...... CORAM : DR.D.Y.CHANDRACHUD, J. 18 February 2011. P.C. : 1. This is a Petition under Section 11(6) of the Arbitration and Conciliation Act 1996. 2. On 16 May 2009 the Respondent awarded to the Petitioner a contract for the construction of an administrative building for the O and M Division No.II at Ulhasnagar. Under Clause 11 of the letter the Petitioner was required to execute a duly stamped agreement within two weeks of the date of the issue of the work order. The Petitioner by a letter dated 26 May 2009 executed an agreement in the proforma provided by the Respondent and forwarded it to the Respondent. On 6 January 2010 the Petitioner submitted a claim before the Chief Engineer of the Respondent and while seeking a decision of the Chief Engineer invoked arbitration in the event that PNP 2 ARP52-18.2.sxw the claim was found not to be admissible or acceptable. The defence of the Respondent in its reply dated 8 February 2010 was that there was no written agreement between the parties. 3. At the hearing of these proceedings it has been urged on behalf of the Respondent that the agreement which was executed by the Petitioner was not executed by the Respondent and in the absence of a written agreement, the arbitration clause contained in the tender specifications would not come into existence. There is no merit in the submission. By the letter dated 16 May 2009 the Respondent communicated to the Petitioner that the offer by the Petitioner for the construction of the administrative building at Ulhasnagar had been accepted. The acceptance was in the following terms: With reference to the above, the undersigned is pleased to “ inform you that your offer for the above work covered under the scope of Schedule-B of the said tender has been accepted and work covered under the scope of the contract is entrusted to you subject to the following terms and conditions. Notwithstanding that reference are given above, the terms and conditions and specifications of contract shall be interpreted by reading together the terms and conditions, specifications and contents of this work order as below.” 4. From this it is evident that while accepting the offer of the Petitioner, the Respondent specifically did so with reference to the tender specifications which were to form part of the acceptance. The tender specifications contained in Clause 42 an arbitration agreement. Under Clause 42 matters in dispute have to be initially referred to the Chief Engineer and thereafter to an arbitral tribunal. The tender specifications clearly form part of the letter of acceptance dated 16 PNP 3 ARP52-18.2.sxw May 2009. The arbitration agreement provides that in all cases where the claim does not exceed Rs.1 Crore, the arbitral tribunal shall consist of a sole arbitrator who shall either be a Chief Engineer of the Respondent or a serving or retired officer not below the grade of Chief Officer or equivalent to be nominated by the Chairman of the Respondent. While exercising the jurisdiction under Section 11(6), it would be appropriate for this Court to have due regard to the agreement as contained in Clause 42 of the tender specifications. Hence, this Petition shall stand disposed of by directing the Chairman of the Respondent to nominate an arbitrator within a period of four weeks from the date on which a certified copy of this order is communicated by the advocate on behalf of the Petitioner. In the event that the Chairman of the Respondent fails to nominate an arbitrator within the period stipulated, liberty is reserved to the Petitioner to apply before this Court for the appointment of an arbitrator by seeking appropriate directions in this Petition. The Petition is accordingly disposed of. (Dr. D.Y. Chandrachud, J.)