STEELAUTHORITYOFINDIALTD Vs. RAJ KUMAR AND BROS

JUDGEMENT

(1.) THE judgment and order dated 29.4.1994 passed by Subordinate Judge, 4th Court, Dhanbad in Title (Arbitration) Suit No. 81 of 1994 has been challenged in this civil revision application by the plaintiff-petitioner.

(2.) THE facts of the case run in a very narrow compass. On invitation of tender for transportation of middlings from the dams lying on the east of Dugdha Coal Washery and loading into wagons at No, 4 siding, the defendants along with others made their offers and after negotiation, the defendant was found to be fit for entrusting the contract and as such the letter of intent was issued on 25.10.1992 to defendant No. 1 vide Ext. 13 in the suit. THE defendant asked for work order, but it is the case of the plaintiff that before the contract could be finalised it was decided by the authorities of the plaintiff that the work would be done departmentally through Bharat Coking Coal Limited and not by a third party and as such the defendants were asked to take back his earnest money. On the other hand the defendants' case is that after the letter of indent was issued and the defendant was asked to proceed with the work, he had already taken steps towards proceeding with the contract work but as the authority of the plaintif gave assurance to the defendant that he would be given a similar contract orders subsequently he was agreeable to take back the earnest money and on such assurance, he accordingly withdrew the earnest money, but when no contract order was given to him, he had invoked the provision of arbitration for the compensation and damages caused to him due to repudiation of the contract. THE plaintiff then filed a petition under Section 33 read with Section 5 of the Arbitration Act (the Act) for determination as to the existence and validity of the agreement as also for revocation of arbitration. It appears, that the learned court below registered the said petition as Title (Arbitration) Suit No. 81 of 1994 and proceeded to adjudicate the matter like that of a civil suit by framing issues and also taking evidence of both the parties. Be it what it may, by a lengthy judgment impugned in this civil revision application, the learned court below held that as the contract was complete on issuance of the letter of intent and when the earnest money had been withdrawn by the defendant on protest then the arbitration clause was very much available to the defendant for the purpose of conciliation regarding his compensation and damages.

(3.) I am not going much into the factum regarding the completion of contract or not on the basis of the letter of indent issued from the side of the plaintiff and taking it for granted that the contract was complete in the sense of offer and acceptance, but the implementation of the same was not there before it was repudiated as the plaintiff wanted the work to be done departmentally through its own wing Bharat Coking Coal Limited. Taking it for granted that the contract was repudiated then the chapter was closed after the earnest money was withdrawn by the defendant-opposite party, but if that withdrawal was a conditional one and under protest, then its effect is required to be seen for the purpose of invoking the clause of arbitration. Definitely it is necessary that the agreement of arbitration must be entered into the signed by the parties but that has not been done and it has been submitted by Mr. Eqbal that in the form of such contracts, practically along with tender, all terms and conditions are being supplied and on payment of such terms and conditions, tenders are being accepted and then the letter of intent was issued and as such it is not available to the department not to say that the terms and conditions including that of clause of arbitration was not available to the defendant.