TMI Blog2005 (12) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi and tender was submitted as directed by the respondent No.1 which was opened at 4 PM on 10.6.1993 at C-2/112, DDA flats, Lawrence Road, Delhi-110035. After negotiation, the work was awarded to the petitioner. The negotiations also took place at C-2/112, DDA flats, Lawrence Road, Delhi-110035 which is apparent from the communication dated 9.7.1995 which was sent to the petitioner. 4. The special conditions agreed between the parties had an arbitration clause which is reproduced for reference:- 19: ARBITRATION Condition 54 of the General Conditions of contract shall be superseded by the following provisions for Arbitration. Except where otherwise provided for in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work or as to any other question,Page 0063 claim, right, matter of thing whatsoever in any way arising out of or relating to the contract, design, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works, or the executing or failure to execute th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adopted will be final and would not be opened to arbitration. The work under the contract shall, if reasonably possible continue during the arbitration proceedings and no payment due or payable to the Contractor shall be withheld on account of such proceedings. The Arbitrator shall be deemed to have entered on the reference on the date he issues notice to both the parties fixing the date of the first hearing. The Arbitrator shall give a separate award in respect of each dispute or difference referred to him.Page 0064 The venue of the arbitration shall be such place as may be fixed by the Arbitrator in his sole discretion. The award of the Arbitration shall be final, conclusive and binding on all parties to this contract. 5. The construction work which was awarded to the petitioner, was completed, however, the disputes arose regarding payment, necessitating the petitioner invoking the arbitration clause under the special conditions of the contract. The petitioner by letter dated 21.8.1997 requested the secretary of the respondent No.1 to appoint an arbitrator to adjudicate the disputes between the parties. 6. On failure of the respondent No.1 to appoint an arbitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arbitration clause of the special condition being clause 19 has not been signed by the parties, therefore, there is no arbitration agreement between the parties. 9. It is not disputed that the tender of the petitioner was accepted pursuant to which the work was awarded and work was carried out in compliance with the conditions stipulated under the general conditions and the special conditions. So long as the parties are at ad-idem regarding the special conditions which were relied on, not signing the special conditions of contract containing arbitration agreement will not negate the same. 10. An agreement for arbitration is a sine qua non for adjudication of disputes by Arbitration. An arbitration agreement should be in writing i.e its terms should be reduced to writing but if the agreement is not signed and it is established by another written contemporaneous document, it will be binding between the parties. The Apex Court in Jugal Kishore Remeshwardas Vs Goolbai Hormusji, AIR 1955 SC 812 had held that in order to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties, and it is sufficient if the terms are red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputes between the petitioner and respondent nos. 2 to 4. 11. The next plea of the petitioner is that by letter dated 21.8.1997 the arbitration agreement between the parties was invoked and the respondent No.1 was asked to appoint an arbitrator and adjudicate the disputes stipulated in annexure annexed with the said letter. The petitioner, however, has produced only a photocopy of the said letter and nothing has been produced to show that the letter was sent to respondents and was received by them. Though the petitioner has produced the photocopies of the postal receipts bearing Nos.1466 and 1467 dated 21.8.1997, however, the original receipts have not been produced nor any explanation has been given for non production of copy of letter and original postal receipts. In absence of the copy of the letter dated 21.8.1997 alleged to have been served on the respondent and original postal receipts, the letter dated 21.8.1997 invoking the arbitration agreement between the petitioner and the respondent no.1 has not been proved by the petitioner. The petitioner has not been able to demonstrate in the facts and circumstances that the notice dated 21st August,1997 was served upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered office at Gurgaon, the cause of action which has arisen at Delhi will not be negated nor it can be stated that the jurisdiction shall only be at Gurgaon. The respondent No.1 has not shown and produced anything to show that there was any exclusion clause restricting the jurisdiction of the Courts at Gurgaon only in case of any dispute between the respondent No.1 and any other person. Reliance can be placed on AIR 1989 Punjab and Haryana 205, Union of India V/s.M/s.Shibboo Mal and Sons holding that in deciding the question as to where the contract is made, the Court must take into consideration the provisions of Section 4 of the Contract Act. It was held that where acceptance is conveyed to the plaintiff, a part of cause of action arises there and the Civil Court will have jurisdiction to entertain a petition under Sections 14 and 17 of the Arbitration and Conciliation Act. In another judgment relied on by the petitioner AIR 1986 Bombay 76 it was held that where the acceptance of the tender was communicated to the contractor, the part of cause of action had arisen and the Court at a place where acceptance of tender was communicated will have jurisdiction. A Division Bench of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of attorney which was filed in the case and no statement was made in the plaint as to who was the proprietor of the firm. In the case of P.C. Advertising (supra), it was held that the suit filed in the name of proprietorship firm which was neither a registered company nor a joint family nor a partnership firm, in the absence of any prayer to seek amendment to allow the sole proprietor to sue in his name was maintainable. 16. The petition has been filed in the name of M/s Svapn Constructions and not in the name of Shri.A. K. Khanna its sole proprietor. In the petition filed by the petitioner, no prayer has been made seeking amendment to sue in the name of the sole proprietorship firm. Even according to the averments made in the petition, though it is stated that Mr.A.K. Khanna is the sole proprietor of the firm, M/s.Svapn Construction, however, no permission has been sought to sue in the name of the sole proprietorship firm. If the sole proprietorship firm is not a legal entity, the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm and not in the name of sole proprietorship firm. Considering it from any point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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