Case: Dresser Rand S.A Vs. M/S. Bindal Agro Chem Ltd.

9. BINDAL wanted to invite global tenders for supply of various equipments and materials for its Shahjahanpur Fertilizer Project. For that purpose, it prepared its standard Invitation to Bid comprising Conditions of Purchase for Supply of Equipment and Material under ICB Procedure - Shahjahanpur Fertilizer Project. The said Invitation to Bid consisted of the following sections :-  (i) Attachment I - Instructions to bidders (Articles 1 to 34);  (ii) Attachment II - General conditions of purchase (Articles 1 to 36);  (iii) Attachment III to XVI : Special conditions of purchase (Attachment-III), schedule of requirements (Attachment-IV), Technical Specifications (Attachment-V) Bid Form and Price Schedules (Attachment VI), Purchase Order Form (Attachment VII), Spare Parts List (Attachment-VIII), Vendor Data Requirements (Attachment-IX), List of Lubricants (Attachment-X), Progress Trend Charts (Attachment- XI), Draft form of Performance Guarantee (Attachment-XII), Draft Form of Bank Guarantee for Advance/Progress Payments to Supplier (Attachment- XIII), Bid Security Form (Attachment-XIV), General specifications for packing (Attachment-XV) and check list (Attachment-XVI).  10. BINDAL sent a telex dated 12.1.1990 to DR informing that it was implementing a Gas-based Fertilizer Plant at Shahjahanpur and it was in the process of exploring possibilities for securing various equipments including Synthesis Gas Compressors, Process Air Compressors, Refrigeration Compressors and CO2 Compressors and enquired whether DR would be interested in supplying the equipments. DR sent a reply dated 18.5.1990 offering to supply Syn-Gas Compressor and indicating the total price of the compressor and spare parts. The matter was dormant for some times. By letter dated 16.3.1991, BINDAL informed DR that the necessary Government approval for fertilizer project has been received and, therefore, it wished to revive the discussions for supply of Syn. Gas compressors and CO2 compressors. By fax dated 5.4.1991, BINDAL requested DR for a quotation to be followed by a formal Bid for Syn-Gas and CO2 compressors and informed DR that having regard to the tight foreign exchange situation, the Government of India had allocated only 50% of its total foreign exchange requirement and, therefore, it had decided to limit its imports only to moving machinery, cutting out static equipment. DR sent a reply dated 16.5.1991, quoting its price for Syn. Gas compressor and proposed to discuss the modalities of DR having overall responsibility for various compressor turbines/auxiliaries not included in the scope of supplies, as also commercial points. This was followed by a meeting between the representatives of DR and BINDAL wherein the technical details in regard to performance of the syn. gas compressor discussed.11. Thereafter, DR gave its comments/modifications to the terms and conditions of BINDAL termed as Revision 4 (Attachment IV) dated 10.6.1991 wherein it set out the amendments/modifications it required to BINDALs General Conditions of Purchase. The said Revision 4 was initialled by the representatives of DR and BINDAL, presumably in token of the changes agreed in the standard General Conditions of Purchase of BINDAL.

Reasoning: What is stated above with reference to section 33 of Arbitration Act, 1940, will apply with equal force in regard to section 3 of Foreign Awards Act. Therefore, the fact that at some point of time, BINDAL or KGK had stated that they would appoint an Arbitrator will not come in the way of their demonstrating that there is no arbitration agreement when the matter comes up before the court under section 3 of the Foreign Awards Act. Therefore, there is no question of either waiver or acquiescence.