TMI Blog2003 (7) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... jat Navet and Pradeep Kumar Bakshi for the Appellant. Rakesh K. Sharma for the Respondent. JUDGMENT D.M. Dharmadhikari, J. - Heard learned counsel appearing for the parties. Leave to appeal, as prayed for, is granted. 2. The appellant Hythro Power Corporation Limited has approached this Court aggrieved by rejection of its application under section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act" for short). The learned judge of the Delhi High Court acting as designate or nominee of the Chief Justice, in exercise of his powers under section 11 of the Act, by his order dated 7-12-2000 came to the conclusion that no agreement in writing having been executed by the parties with an arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the appellant, the exchange of letters and correspondence between the parties, pursuant to the issuance of NIT and submission of offer by the appellant and its acceptance by the respondent constituted a contract and as the terms and conditions in the NIT, on which the contract was awarded, contained clause 25 providing forum of arbitration, "arbitration agreement" as defined in section 7(4)( b ) of the Act had come into existence to enable the appellant to invoke the said arbitration clause. 7. Learned Senior Counsel appearing for the appellant relies on a three-Judge Bench decision of this Court in Konkan Railway Corpn. Ltd. v. Mehul Construction Co. [2000] (7) SCC 201 and the Constitution Bench Judgment of this Court in Konk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the existence of arbitration agreement . Whether the letters and exchange of corres-pondence between the parties, pursuant to the NIT, can constitute a contract and an arbitration agreement can be read into the same in terms of section 7(4)( b ) of the Act was a question solely within the jurisdiction of arbitral Tribunal under section 16 of the Act. See decision in the case of Nimet Resources Inc. v. Essar Steels Ltd. [2000] (7) SCC 497 wherein Justice Rajendra Babu of this Court acting as designate of the Chief Justice of India while exercising powers under section 11 of the Act, observed thus : "I am conscious of the fact that M. Jagannadha Rao, J., in Wellington Associates Ltd. v. Kirti Mehta [2000] 4 SCC 272 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that under the arbitration clause the arbitra- tor was to be nominated by the Food Corporation of India as the employer and not by the Indian Council of Arbitration which was the institution from whose panel the arbitrator was to be selected. The designate of the Chief Justice under section 11 refused to make a reference and the High Court in writ petition by an elaborate judgment expressed its opinion on the dispute that the Food Corporation of India should have nominated the arbitrator from the panel of Indian Council of Arbitration. In the context of that dispute, this Court observed thus : "Unfortunately, the High Court in this case seems to have proceeded to adopt an adjudicatory role and returned a verdict recording reasons as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitral Tribunal itself. Even under the old law, commonsense approach alone was commended for being adopted in construing an arbitration clause more to perpetuate the intention of parties to get their disputes resolved through the alternate disputes redressal method of arbitration rather than thwart it by adopting a narrow, pedantic and legalistic interpretation." Keeping in view the law as settled by this Court, the designate of the Chief Justice acting under section 11 of the Act and the Division Bench of the High Court in exercise of power under article 226 of the Constitution both acted under a misconception of law and wrongly held that the disputes were not referable to the arbitration. The appellant sought reference of its dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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