(1.) Leave granted.
(2.) The factual matrix in which the present matter arises is that the Respondent No.1 issued a Global Invitation of Request for Qualification (hereinafter referred to as "RFQ") in March, 2009 inviting applications from interested persons for the development of the 4th Container Terminal Project on Design, Build, Finance, Operate and Transfer Basis at Jawaharlal Nehru Port. The RFQ document of 02.03.2009 expressly contained a clause by which the bidder could be a Single Entity or a Consortium. On facts, the appellant and the Respondent No.2 before us together formed a Consortium with the appellant as the Lead Member, Technical Member and Financial Member of the Consortium. It may be pointed out at this stage that the appellant is a Company registered in Singapore, whereas Respondent No.2 is a Company registered in India.
(3.) Some of the salient features of the RFQ is that the RFQ itself, at the forefront, states by way of a Disclaimer that nothing in the RFQ will be construed to make the RFQ an Agreement between the parties. Whatever is stated in the RFQ Clauses would only be by way of information to a prospective bidder as to the work to be performed. The bid itself was in two stages - the first being at the stage of eligibility, and the second being at the stage of the Request for Proposal (hereinafter referred to as "RFP"). Since the Consortium between the appellant and the Respondent No.2 qualified in the first stage, they were entitled to be considered under an RFP document floated by the Respondent No.1 dated 07.06.2010. Under this document, what was made clear was, like the RFQ, that nothing in the RFP should be construed as forming an agreement between the parties. The only idea of the RFP was that the Consortium, in making its financial bid, would know what exactly was required of it during performance of an agreement to be entered into in future. What is interesting to note is that though there is no agreement at the stage of an elaborate bid process set out in a schedule to the RFP, yet, right until a Concession Agreement is to be signed between a Special Purpose Vehicle set up for the purpose by the Consortium and the Respondent No.1, the bid process will be governed by Indian law and the Courts at Mumbai shall have exclusive jurisdiction over the disputes that may arise under or in connection with the said process. Another important clause is that the Jawaharlal Nehru Port Trust (Respondent No. 1) can annul the bid process without assigning any reason right up to the stage that a Concession Agreement is actually entered into, as stated herein- before, between the Special Purpose Vehicle and the Respondent No.1. Equally, what is of great importance is a draft Concession Agreement, which forms part of the RFP document and is, therefore, deemed to be a part of the Consortium bid itself. This draft Concession Agreement contained an arbitration clause in the following terms: